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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