Saturday, June 8, 2019

Supreme Court to examine MCI ordinances

Dr KK Aggarwal

The Supreme Court has asked the government to respond to the allegation of India Medical Association (IMA) that the Ordinance has been promulgated repetitively to favor certain colleges to gain support in polls writes Jeevan Prakash Sharma in Outlook.

Before this ordinance, the government had proposed NMC Bill, 2017 to replace the Medical Council of India 

IMA, has alleged in its petition in the Supreme Court that the purpose of the Indian Medical Council (Amendment) Ordinance 2018 was to give permission to incompetent medical colleges so that they could give financial and other support for Lok Sabha elections.

The government on September 29, 2018, promulgated the IMC (Amendment) Ordinance 2018 which replaced the MCI with Board of Governors. IMA has also questioned the intent of the government.
As per the Constitution, an ordinance can be issued when Parliament is not in session and it is valid for six months. It must get the approval of both Houses of Parliament within six weeks of the beginning of the session.

The Ordinance was introduced in the Lok Sabha on December 30, 2018, and got approved but “the same could not be passed in the Rajya Sabha.”

The government re-promulgated it in on January 12, 2019, and once again on February 2, 2019.
No emergent situation ever arose which required the promulgation of an Ordinance since the Medical Council of India was already discharging its function, as per the provision of the Indian Medical Council Act, 1956.

What is an ordinance?

Ordinances are laws that are promulgated by the President of India (Indian Parliament) on the recommendation of the Union Cabinet; they can only be issued when Parliament is not in session.
They enable the Indian Government to take immediate legislative action.

Ordinances cease to operate either if Parliament does not approve of them within 6 weeks of reassembly, or if disapproving resolutions are passed by both Houses.

It is also compulsory for a session of Parliament to be held within 6 months.

Who has the powers?

The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.  

Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’.

Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses.

Repromulgation of Ordinances

·         Ordinances are only temporary laws as they must be approved by Parliament within 6 weeks of reassembling or they shall cease to operate.
·         However, governments have promulgated some ordinances multiple times.
·         For example, The Securities Laws (Amendment) Ordinance, 2014 was recently repromulgated for the third time during the term of the 15th Lok Sabha.
·         Same is true for IMC ordinances
·         Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body. In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, where the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate Ordinances, the Constitution Bench headed by Chief Justice PN Bhagwati observed:

“The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be "perverted to serve political ends".”

It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.”

Ordinances linked to MCI

Congress government also did the same thing and ran the MCI through the ordinances and the same was done by Modi government

Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA

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