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 15^th 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

What is IMC Ordinance, its Passage by Lok Sabha and Validity

The Indian Medical Council (Amendment) Bill, 2018, which seeks constitution of a Board of Governors that will exercise the powers of the Medical Council of India (MCI) was passed in the Lok Sabha on Monday. 

The Bill was introduced on December 14 in the Lok Sabha by Union Health and Family Welfare Minister, which was earlier brought in as an ordinance on September 26 this year when the Parliament was not in session. Under the new amendment, the Bill provides for the supersession of the MCI for a period of one year. 

Running the government has now become a new way of ‘ ruling the country via ordinance”. UPA government did the same thing by ruling the MCI through a series of ordinances till they lasted. Once BJP came to power, they again tried bringing NMC (with total administrative control) as an alternative to MCI. They have failed miserably till today and have not been able to pass it in the parliament. So, they decided to go the UPA way by bringing an ordinance on 26^th September, 2018.

Once this is done they are not interested whether NMC Bill gets passed or not. As they have opened the doors of ordinances and its promulgation to do what they want to do. Whoso ever comes back to power they will use the same gateway to run the MCI.

Let’s talk about loopholes in the legal system

An ordinance is an executive order issued by the President of India that holds the same force and effect as an Act passed by the Parliament. The President has the power to issue ordinances under Article 123 of the Constitution. It is the Union cabinet that forwards proposals for issuing ordinances to the President who merely gives his assent.

An ordinance is normally issued only when both Houses of Parliament, Lok Sabha and Rajya Sabha, are not in session. It is meant as a last resort and not a tool to replace the power or functioning of Parliament. Also, ordinances should, generally, be issued only on pressing issues or issues that require immediate consideration but cannot wait for Parliament to assemble and consider the bill.

What was the urgency in this case? NMC bill was already in the Parliament. They could have extended the tenure of the present MCI.

But we all know most ordinances are issued by the government for lack of consensus in Parliament like in the present MCI issue when NMC bill was already in the parliament. If there is a possibility of a bill not being passed in the current session of Parliament, government may choose to take the ordinance route pending its approval by the Parliament during a later session.

An ordinance, once issued, is valid for six weeks from the date of ordinance when the next session of Parliament starts. During this period, Parliament can either pass the ordinance turning it into an Act or disapprove the ordinance. If the ordinance is not passed by Parliament, it can be re-promulgated or re-issued by the President (meaning government).

Lok Sabha has passed in the present case. Now the bill will go to Rajya Sabha and if gets passed, then BoG ruling for one year becomes an act. But if it is not passed in Rajya Sabha it will be re-promulgated or re-issued by the President (meaning government).

There is no limit on how many times an ordinance can be re-issued but as per ruling of the Supreme Court, it cannot be re-promulgated endlessly without getting it to vote in the Parliament or Legislature. President has the power to withdraw the ordinance any time.

An ordinance is only a temporary executive measure. It should not replace the power and function of Parliamentary process and has to be introduced as a bill in the Parliament for its consideration.

Once both houses of Parliament pass the bill, it turns into an Act. This is how a bill that was previously an ordinance becomes an Act of Parliament. However, if one house passes the bill while other disapproves it or sits on it without voting on the bill, a joint session of the Parliament can be called to vote on the bill (this is another alternative with the government but we doubt will happen).

But taking the ordinance route is not on merit as it implies dysfunctional polity where law makers are not able to arrive at a consensus on important national issues.

Personally I feel they will be able to get it passed even in Rajya Sabha because UPA did not have any problem when they were in power. 

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

Immediate Past National President IMA