The Indian Medical Council Amendment Ordinance
2013, notified on 21st May, which was introduced as Bill in the Rajya Sabha by
the Central Government could not be passed in the monsoon session of the
Parliament.
As per Article 123 of the Constitution of India,
if an ordinance is not passed by the Parliament, it will lapse after six weeks
of the commencement of the first parliament session after the ordinance is
notified. As the Ordinance has not been ratified by the Parliament, it lapsed
on 16/09/2013.
This is a very peculiar situation as technically
the Board of Governors and thereby MCI has ceased to exist. What will the
Government do now?
Mr. Sube Singh, Director MOH Govt. of India
Therefore the health ministry is proposing to
promulgate a fresh ordinance but it may not be easy as the present President
may not like to enter into a controversy especially at a time when the
elections are near, as there is not a single instance since 1950 till today,
wherein the President of India has re-promulgated any Ordinance after its
expiry.
The current ordinance gave the new Board of
Governors a period of six months and was to lapse on 12th November, 2013
subject to approval of both the Houses of Parliament.
If the President of India does not re-promulgate
this ordinance, the present constitutional crisis presents limited options for
the government, which includes letting it lapse and come out with other
modified fresh ordinance or re-install the MCI, which preceded by the first
ordinance in 2010.
The term of the present Board of Governors, which
ends on 12th November, can also be extended for another six months by a fresh
ordinance to be passed in winter session (again the president of India may not
like to do that)
The lapsed Ordinance was passed on 21st May 2013
effective retrospectively from 15th May 2013 and carried nearly 40 amendments
in the Indian Medical Council Act, 1956.
It is not so that other Bills were not passed by
the Parliament. It appears that most of the political parties other than the
ruling one were not in favor of passing the amendment in its present state.
The present constitutional crisis has limited
options for the Government, either to re promulgate the ordinance (which has
not happened in the history since 1950 and the president may not like to enter
in this controversy); come out with other modified fresh ordinance or
re-install the MCI which was superseded by the first ordinance in 2010. The
present Board of Governors term which ends on 12th November, can also be
extended for another six months by a fresh ordinance to be passed in winter
session.
The present Government any way has been able to
carry what they wanted for over three years by carrying forward the ordinances
(four till now and fifth if a new one is introduced), an action which may be
considered somewhat unconstitutional. In the history of India
The present amendment Ordinance /Bill, which is
being opposed by the most of the political parties, takes away the entire
autonomy of the council. If the present amendment bill is passed, the Central
Government will be the final authority on each and every issue of MCI whether
it relates to policy or not.
Sequence of events in MCI
1.
15th May, 2010: MCI was superseded in exercise
of the powers conferred by sub-section (1) of section 3A of the Indian Medical
Council Act, 1956 (102 of 1956) and the President, Vice-President and all other
Members of the said Council vacated their offices.
2.
15th May, 2010: On supersession of the Council,
the Central Government constituted the Board of Governors vide notification
S.O.1123 (E) to perform the functions of the Council during the interregnum.
3.
15th May, 2010: The health minister assured that
within one year the MCI would be reconstituted but it did not happen and the
term of the Board of Governors was extended to two years by the Indian Medical
Council (Amendment) Act, 2011 (13 of 2011) and it was further extended up to
three years by the Indian Medical Council (Amendment) Act, 2012 (20 of 2012),
with effect from 15th May, 2010. It is significant to note that the Central
Government had done nothing and had not initiated any measure to reconstitute
MCI during this entire period of 3 years in spite of repeated assurances and
promises.
4.
14th May, 2013: The three year term of the Board
of Governors expired.
5.
19th March, 2013: The Indian Medical Council
(amendment) Bill was introduced in the Rajya Sabha and is pending in that
house.
6.
21st May, 2013: To circumvent the above, the
government brought Indian Medical Council (amendment) Ordinance 2013.
7.
21st May, 2013: The board was reconstituted in
accordance with the provisions of the Indian Medical Council (Amendment)
Ordinance, 2013 (4 of 2013), which was promulgated by the President on the 21st
May, 2013, which came into force with effect from the 15th day of May 2013.
8.
Section 3AA of the said Act, as inserted by the
said Ordinance, requires the Central Government to reconstitute the Council
under sub-section (1) of section 3 within a period of one hundred and eighty
days with effect from the 15th day of May, 2013.
9.
The proviso to section 3AA provides that the
Board of Governors constituted under sub-section (4) of section 3A shall
continue to exercise the powers and perform the functions of the Council till
the new Council is reconstituted or for a period not exceeding one hundred and
eighty days with effect from the 15th day of May, 2013, whichever is earlier.
10.
The Indian Medical Council (Amendment)
Ordinance, 2013 (4 of 2013) was to be passed in the monsoon session by both the
houses of the parliament and but the same did not happen.
11.
16th September, 2013: The present Ordinance
lapsed thereby forcing a constitutional crisis as the Board of Governors and
thereby the MCI has ceased to exist.
12.
16th September, 2013: Sube Singh,
Director MOH Govt. of India wrote to Chairman BOG, MCI [F No V
11011/1/2013-MEP-1(pt) dated 17th September} “with reference to the
above cited subject that the existing Indian Medical council (Amendment)
ordinance, 2013 would cease to operate on 16.09.13. The government is proposing
to promulgate a fresh ordinance so that the work already done by the board of
governors of the council as per provisions of the earlier ordinance gets
validate and may continue. In view of the forgoing, until the fresh Ordinance
is promulgated the BOG is requested not to convene any meeting from 16.09.13
not take any major decision. This issues with the approval of joint secretary
(VM).
The root cause of MCI illness
Going back to the history, the first amendment in
2010 came when the then president of MCI
Dr. Ketan Desai was taken into custody by CBI on 22nd April 2010 on the allegation of taking a bribe for recommending permission to Gian Sagar Medical College Patiala to admit 100 students of 4th Batch, in spite of having deficiencies. On the very next day of the arrest of Dr. Desai, CBI had conducted spot verification with the team of expert doctors and videographers at Gian Sagar Medical College Patiala and interrogated number of officers and Doctors. Now, CBI has filed its report in the competent court along with the copy of videography and stated that college had all requisite facilities except deficiency of auditorium.
Dr. Ketan Desai was taken into custody by CBI on 22nd April 2010 on the allegation of taking a bribe for recommending permission to Gian Sagar Medical College Patiala to admit 100 students of 4th Batch, in spite of having deficiencies. On the very next day of the arrest of Dr. Desai, CBI had conducted spot verification with the team of expert doctors and videographers at Gian Sagar Medical College Patiala and interrogated number of officers and Doctors. Now, CBI has filed its report in the competent court along with the copy of videography and stated that college had all requisite facilities except deficiency of auditorium.
Three days after Dr. Desai was taken into
custody, on the direction of Union Health Minister Mr. Ghulam Nabi Azad, a high
level committee of 3 members under the Chairmanship of present Health Secretary
Mr. Keshav Desiraju along with Dr. Rani Kumar, Dean of AIIMS, New Delhi and Dr.
A K Agarwal, Dean, Maulana Azad Medical College, New Delhi, was constituted to
examine the validity/correctness of the recommendation and report made by MCI
of this college. This committee had
conducted the Inspection on 29th April and submitted its report on 3rdMay 2010
to the Health Ministry. This committee
in its report had stated that the permission recommend by MCI was justified and
also observed that the existing facilities and faculty in the College appear
more than adequate for Undergraduate teaching.
The committee had also observed the nonexistence of auditorium in its
reports. This report was sent to
Director, CBI by the Health Secretary on 11th of May 2010. The question which
arises is that when the Inspection Report of the above hospital was found to be
correct by both the CBI and Health Ministry and there were no other complaints
against MCI or against any of its members than what was the need for the
Central Government to supersede the Council at that juncture? However, the
Government went ahead superseding the MCI and constituted a Board of Governors
of six members under the chairmanship of Dr. Shiv K. Sareen.
Thereafter, the Health Ministry had also
requested the Board of Governors of MCI to review the report of MCI and take
final decision. Board of Governors had
also conducted inspection and had also observed that college does not have
auditorium and granted the permission for 4th Batch on 12th July 2010. The officials of MCI had clarified that the
utility of auditorium was for cultural programs and convocation ceremony held
once or twice in a year and as per the rules it is required at the time of
permission for 5th Batch whereas this college was recommended for 4th Batch.
However Supreme Court had stayed all further proceedings in this matter on 3rd
January 2013.
Further, CBI on the same day when Dr. Desai was
taken into custody had conducted raids at various premises, Residence, Bank
lockers, office etc., of Dr. Desai at Delhi
Immediately thereafter in May 2010, CBI
registered a case of Disproportionate Assets for a period from 1997 to April
2010 (13 years) against Dr. Desai and his family members. Dr. Desai’s wife is
also a Doctor and running her own Maternity hospital since last 22 years and
his late father was in real estate business. While filing the FIR in the
disproportionate assets case, CBI had projected assets of about 233% more than
the income during this period of 13 years.
After detail investigation for almost 2 years, CBI in the month of May
2012 had filed the closure report with all documents and seizure memos in the
competent CBI court in New Delhi Delhi
Subsequently, FIRs were filed by CBI against Dr.
Ketan Desai linked to various medical colleges at Kolkata, Hyderabad ,
Chennai and at Lucknow Hyderabad
MCI later suspended the license of Dr. Ketan
Desai on the ground of pending criminal charges including DA case which is now
closed. Another question which comes is, in the Gian Sagar Medical College
Gujarat Medical Council did not agree to the
decision of the MCI and did not suspend the license of Dr. Desai and this
decision of GMC was conveyed to MCI on 21st December 2010 and till now has not
been challenged/disputed by the MCI.
Questions which the Government must answer
The entire above narration clearly suggests that
the Government is solely responsible for this sordid saga. Several questions
come to my mind. It is high time that some forthright answers should come from
the Government to these questions.
1.
When Dr. Desai was arrested and his home and
office were searched, wide publicity was given to apparently false figures of
huge collection of cash and Gold. However, when nothing could be found and CBI
had to file closure report which was accepted by the Court, almost none or very
little publicity was given. Why such a discriminatory attitude?
2.
MCI was superseded on the pretext of arrest of
its President on the allegation of showing undue favors to a private college in
Punjab – i.e. Gian Sagar Medical
College , Patiala
3.
Even after the MCI was superseded, the Health
Minister had repeatedly promised that it would be reconstituted soon. Such
assurances were also given on the floor of Parliament. However, nothing was
done by Central Government for 3 years to reconstitute the MCI. If this is not
flagrant violation of promises made to public and of assurances given on the
floor of parliament, what else is it?
4.
If the present amendment bill or the ordinance
is passed, the Central Government will be the final authority on each and every
issue of MCI whether it relates to policy or not. Why is the Government hell
bent on destroying the autonomy of MCI?
Some Important Issues
Q: Under which powers can the President of India
A: Article 123 of the Constitution enables the
President of India to promulgate an ordinance if neither House of Parliament is
in session and “circumstances exist, which render it necessary for him to take
immediate action”. Every ordinance has
to be laid before Parliament, and ceases to exist six weeks from the end of the
next sitting of Parliament.
Since the Constitution mandates that Parliament
be called into session at least once every six months, ordinances have a de facto expiration period of
approximately seven and a half months. Article 213 gives the same power to the
Governor of a State.
Q: When were these powers instituted?
Ordinance-making power is not a new feature added
to the Indian Constitution. Articles 42 and 43 of the Government of India Act,
1935, gave the same power to the Governor General.
Q: Can these powers be misused?
Hriday Nath Kunzru and Professor K.T. Shah called
for restricting the executive’s power to promulgate ordinances through greater
oversight by legislatures. They were, however, overruled by Dr B.R. Ambedkar,
who stated that ordinance-making powers were necessary since existing law might
be deficient to deal with a situation “which may suddenly and immediately
arise”. According to him, the only solution was to “…confer upon the President
the power to promulgate a law which will enable the executive to deal with that
particular situation because it cannot resort to the ordinary process of law…”
when the legislature was not in session.
Q.: What is article 123?
Central Government Act: Article 123 in the
Constitution of India
123. Power of President to promulgate Ordinances
during recess of Parliament
(1) If at any time, except when both Houses of
Parliament are in session, the President is satisfied that circumstances exist
which render it necessary for him to take immediate action, he may promulgate
such Ordinance as the circumstances appear to him to require
(2) An Ordinance promulgated under this article
shall have the same force and effect as an Act of Parliament, but every such
Ordinance
(a) shall be laid
before both House of Parliament and shall cease to operate at the expiration of
six weeks from the reassemble of Parliament, or, if before the expiration of
that period resolutions disapproving it are passed by both Houses, upon the
passing of the second of those resolutions; and
(b) may be
withdrawn at any time by the President Explanation Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six
weeks shall be reckoned from the later of those dates for the purposes of this
clause
(3) If and so far as an Ordinance under this
article makes any provision which Parliament would not under this Constitution
be competent to enact, it shall be void CHAPTER IV THE UNION JUDICIARY
Q: Can one misuse ordinances and bring them again and again?
Q.: Can the court strike down an ordinance?
The power of review over ordinances was
implicitly taken one step further in 1998 in the case of Krishna
Kumar Singh
v/s State
of Bihar , where the court struck down a number
of ordinances, stating that no basis for the exercise of ordinance-making power
had been shown. It stated explicitly: “There is also no explanation offered for
promulgating one ordinance after another.”
Q.: What can happen to an ordinance?
After the ordinance is notified it is to be laid
before Parliament within 6 weeks of its first sitting. Parliament could either
choose to pass the ordinance, disapprove it or it may lapse within the
6-week time frame. In addition, the President may chose to withdraw the ordinance.
6-week time frame. In addition, the President may chose to withdraw the ordinance.
Q.: What happens to an ordinance in ordinary course?
Once an ordinance is framed, it is to be laid
before Parliament within six weeks of its first sitting. Parliament is
empowered to either choose to pass the ordinance as law or disapprove it or let
it lapse. Once the ordinance is laid in Parliament, the Government introduces a
bill addressing the same issue. This is typically accompanied by a memorandum
tabled by the government, explaining the emergent circumstances that required
the issue of an ordinance. Thereafter, the bill follows the regular law-making
process. If Parliament does not approve the ordinance, it ceases to exist.
Q.: Is there a Supreme Court Judgment on the matter of Government
repeatedly re-promulgating the Ordinances?
In the 1980s, the Supreme Court was confronted
with a case where a state government repeatedly re-promulgated ordinances that
had lapsed in previous assembly sessions. This led the Supreme Court to examine
the ordinance-making power of Government. The Supreme Court reasserted the
constitutional principle that the primary law-making power rests with the
legislature and not the executive. The executive is only given the legislative
power to issue an ordinance to meet an "emergent situation".
Q.: Are there examples when the ordinances have lapsed as they were
not passed by the government?
In 2004, a week after the winter session ended,
the government issued an ordinance to give the Pension Fund Regulatory and
Development Authority statutory powers as a regulator. Due to political opposition,
the ordinance lapsed and, subsequently, the bill lapsed at the end of the 14th
Lok Sabha.
Supreme Court of India; Dr. D.C. Wadhwa & Ors v/s State Of Bihar
&Ors on 20 December, 1986 [Equivalent citations: 1987 AIR 579, 1987 SCR (1)
798], Bhagwati, P.N, J
1.
The State of Bihar
2.
The practice was that, after the session of the
State Legislature was prorogued, the same ordinances which had ceased to
operate were re-promulgated containing substantially the same provisions almost
in a routine manner.
3.
The petitioners challenged the validity of this
practice and in particular they challenged the constitutional validity of three
different ordinances issued by the Governor of Bihar.
4.
These Ordinances suffered the same process of
re-promulgation from time to time.
HELD
1.
The Bihar Intermediate Education Council
Ordinance 1983 which is still in operation is struck down as unconstitutional
and void.
2.
The Governor cannot assume legislative function
in excess of the strictly defined limits set out in the Constitution because
otherwise he would be usurping a function which does not belong to him.
[818F-G]
3.
In the instant case, the executive in Bihar has almost taken over the role of the Legislature
in making laws not for a limited period but for years together in disregard of
the constitutional limitations. This is clearly contrary to the constitutional
scheme and it must be held to be improper and invalid. It is hoped and trusted
that such practice shall not be continued in the future and that whenever an
Ordinance is made and the Government wishes to continue the provisions of the
Ordinance in force after the assembling of the Legislature, a Bill will be
brought before the Legislature for enacting those provisions into an Act. There
must not be Ordinance--Raj in the country.
4.
The power conferred on the Governor to issue
Ordinances is in the nature of an emergency power which is vested in the
Governor for taking immediate action where such action may become necessary at
a time when the Legislature is not in session.
5.
The primary law making authority under the
Constitution is the Legislature and not the Executive but it is possible that
when the Legislature is not in session, circumstances may arise which render it
necessary to take immediate action and in such a case in order that public
interest may not suffer by reason of the inability of the Legislature to make
law to deal with the emergent situation, the Governor is vested with the power
to promulgate ordinances. But every ordinance promulgated by the Governor must
be placed before the Legislature and it would cease to operate at the
expiration of six weeks from the reassembly of the Legislature or if before the
expiration of that period a resolution disapproving it is passed by the
Legislative Assembly and agreed to by the legislative Council, if any. The
object of this provision is that since the power conferred on the Governor to
issue Ordinances is an emergent power exercisable when the Legislature is not
in session, an Ordinance promulgated by the Governor to deal with situation
which requires immediate action and which cannot wait until the legislature
reassembles, must necessarily have a limited life.
6.
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.
7.
That is why it is provided that the Ordinance
shall cease to operate on the expiration of six weeks from the date of
assembling of the Legislature. The Constitution makers expected that if the
provisions of the Ordinance are to be continued in force, six weeks time should
be sufficient for the Legislature to pass the necessary Act. But if within this
time the Legislature does not pass such an Act, the Ordinance must come to an end.
8.
The Executive cannot by taking resort to an
emergency power exercisable by it only when the Legislature is not in session,
take over the law-making function of the Legislature. That would be clearly
subverting the democratic process which lies at the core of our constitutional
scheme, for then the people would be governed not by the laws made by the
legislature as provided in the Constitution but by laws made by the Executive.
9.
The Government cannot by-pass the Legislature
and without enacting the provisions of the Ordinance in an Act of the
Legislature, re-promulgate the ordinance as soon as the Legislature is
prorogued.
10.
A constitutional authority cannot do indirectly
what it is not permitted to do directly.
11.
If there is a constitutional provision inhibiting
the constitutional authority from doing an act, such provision cannot be
allowed to be defeated by adoption of any subterfuge. That would be clearly a
fraud on the constitutional provision.
12.
When the constitutional provision stipulates
that an Ordinance promulgated by the Governor to meet an emergent situation
shall cease to be in operation at the expiration of six weeks from the
reassembly of the Legislature and the Government if it wishes the provisions of
the Ordinance to be continued in force beyond the period of six weeks has to go
before the Legislature which is the constitutional authority entrusted with the
law making function, it would most certainly be a colourable exercise of power
for the Government to ignore the Legislature and to re-promulgate the Ordinance
and thus to continue to regulate the life and liberty of the citizens through
Ordinance made by the Executive. Such a stratagem would be repugnant to the
constitutional scheme, as it would enable the Executive to transgress its
constitutional limitation in the matter of law making in an emergent situation
and to covertly and indirectly arrogate to itself the law making function of
the Legislation.
13.
The question is not of satisfaction of the
Governor in issuing an Ordinance. The only question is whether the Governor has
power to re-promulgate the same Ordinance successively without bringing it
before the Legislature. That clearly the Governor cannot do. [818B-C] Bharat
Singh v. Empire, AIR 1931 PC 111; Rajaram Bahadur Kamlesh Narain Singh v. Commissioner
of Income Tax, AIR 1943 PC 153; Laxmidhar Misra v. Rangalal & Ors., AIR
1950 PC 59 and R.C. Cooper v. Union of India, [1970] 3 SCR 530.
14.
It is significant to note that so far as the
President of India is concerned, though he has the same power of issuing an
Ordinance under Article 123 as the Governor has under Article 213, there is not
a single instance in which the President has, since 1950 till today,
re-promulgated any Ordinance after its expiry.
15.
There must not be Ordinance--Raj in the country.
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