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Should Ordinances be Abolished?


K.K. Kailash

PRESIDENTIAL LEGISLATION IN INDIA: THE LAW AND PRACTICE OF ORDINANCES
By Shubhankar Dam
Cambridge University Press, New Delhi, 2014, pp. xviii 259, Rs. 440.00

VOLUME XXXIX NUMBER 2 February 2015

A day after the winter session of parliament ended in December 2014, the National Democratic Alliance (II) Government promulgated two ordinances aimed at taking forward economic reforms in the insurance and coal sectors arguing that ‘the country can no longer wait’. Critics slammed the ordinances arguing that it was unethical and they subverted the spirit of parliamentary democracy. Shubankar Dam’s Presidential Legislation in India attempts to deal with this dilemma. He asks whether governments should be allowed to pass ordinances and why the provision should not be abolished. This work is part of the Cambridge University Press series on comparative constitutional law and policy. Its aim, substance, approach as well as style is reminiscent of old institutionalism literature and will take students of political science to the period when the discipline was attempting to differentiate itself from history and moral philosophy by focussing on the formal aspects of government while simultaneously reflecting on normative ideals. Dam begins with the assumption that there is an ideal-type route for legislative and parliamentary processes and then evaluates the practice and politics of ordinances in India at the national level using that lens.  The normative vantage point is that ordinances compromise Parliament as it allows government to legislate without its approval. Dam advances three reasons why the constitutional provision of ordinances makes the legislative process a ‘private affair’ and should therefore be abolished (p. 3). First, unlike normal legislation the promulgation reasons are not made public. Second, Parliament is not involved in the initial stages. Third, unlike ordinary law, ordinances take effect before it is made public. The point is that in the case of ordinary legislation, parliamentary discussion makes it a public affair and this he believes is the ideal route.  Dam wants to convince us that there is something rotten about ordinances and concludes there is no good reason for this constitutional provision in the first place. His arguments are squarely located in the decline of institutions thesis corner as he believes that the increasing use of ordinances reflect falling legislative ‘standards’, the inability of governments to develop working majorities and ‘lax’ judicial interpretations (p. 23). He advances the arguement that both the judiciary and the President (Governor in the case of States) should therefore be more vigilant when it comes to the issue of ordinances.  This work straddles two disciplines, political science and law and will probably appeal more to the latter. It ...


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