Ordinances: India
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History
1775-2019
Chethan Kumar, Oct 16, 2019: The Times of India
From: Chethan Kumar, Oct 16, 2019: The Times of India
From: Chethan Kumar, Oct 16, 2019: The Times of India
From: Chethan Kumar, Oct 16, 2019: The Times of India
From: Chethan Kumar, Oct 16, 2019: The Times of India
From: Chethan Kumar, Oct 16, 2019: The Times of India
Over 200 years, words like reliability, expertise and monopoly can become tricky for any organisation. India’s ordnance factories are discovering the weight of history as government looks to corporatise and streamline them to function as sleek, profit-driven commercial enterprises.
While historically, the factories have served as the backbone of the armed forces and thrown up successes crucial to winning wars, policy makers now think it is time that expertise is put to the test in the open market.
The Centre is considering converting the factories into multiple companies on the lines of defence public sector undertakings (DPSUs) such as HAL (Hindustan Aeronautics Limited) and Bharat Electronics Limited (BEL).
If the corporatisation does happen, the very DNA of the non-profit Ordnance Factory Board (OFB) and the 41 factories under it will change. For the first time, they will look for commercial returns from the products they manufacture.
And that evokes as much trepidation as excitement.
The Beginning
The origin and development of ordnance factories is linked with the British reign in India. In 1775, British authorities accepted the establishment of a Board of Ordnance in Fort William, Kolkata, marking the official beginning of army ordnance in India.
More than a decade later, in 1787, a gunpowder factory was established at Ishapore which started production from 1791. Today, this unit houses RFI (Rifle Factory Ishapore).
In 1801, a Gun Carriage Agency at Cossipore, Kolkata (today known as Gun & Shell Factory, Cossipore), was established and production started from March 18, 1802. This was the first industrial establishment of ordnance factories, which is officially considered the beginning of their journey.
From there, multiple other facilities were established by the British and at the time of Independence, there were 18 ordnance factories in India. Four were established between 1947 and 1962 and thereafter 19 more units came up, taking the total to 41 as on date. All of these function under the Department of Defence Production (DoDP) ministry of defence (MoD).
“Post-Independence, there has been a huge qualitative change in our production series and items. Before that, we were producing very old type of ammunition and had one factory for small arms. Especially after the 1962 war, we expanded our facilities and our production to include artillery, tanks, BMPs, electro-optics systems et al,” OFB chairman Saurabh Kumar told TOI.
An Old Warhorse
Ordnance factories, the OFB says, are immensely proud of their contribution during the wars of 1947-48, the 1962 Indo-China conflict, Indo-Pak wars of 1965 and 1971 and Kargil in 1999.
“Our first real transformation came after the 1962 conflict with China. We grew in size and began setting up infrastructure for ammunition production — and then we had the 1965 and 1971 wars. In the 1980s, the tanks came in and our journey went on. The next big spurt came in 1999, during Kargil,” Kumar said.
In 1972, the Centre awarded a Padma Shri to OP Bahl, a former additional director general of ordnance factories and member-OFB, for his efforts during the Indo-Pak war of 1971. Before that, another ordnance officer, KC Banerjee, had got a Padma Shri for the OFB’s contributions in the 1965 war.
During Kargil, technical and operational difficulties were immense and the rate of ammunition expenditure and equipment attrition was very high. Artillery guns and small arms used in Kargil were either manufactured or supported by OFB.
While the 105mm Indian Field Gun, or the Light Field Gun, and the 120mm, 81mm mortars, rocket launchers, assault rifles, grenades and all kinds of ammunition were fully manufactured by OFB, Bofors gun barrels and its parts were manufactured by the ordnance factories.
“At the time of Kargil, our order book went up by more than 50% overall and in some cases, like ammunition, it went up by 200%. Post 26/11, it has been a more sustained growth. For nearly seven years, the turnover when you look at only ammunition, doubled. Now, we are focused on newer ammunition and ordnance that the army does not have,” Kumar added.
Make-in-India
“We’re now gearing up to absorb technological advancements of the 21st century to produce world class guns, ammunition and equipment, in order to keep pace with aspirations of the Indian armed forces while also working towards fulfilling the ‘Make in India’ initiative in a proactive manner,” Uddipan Mukherjee, joint director of OFB, told TOI.
In a long list of indigenous productions that OFB mentions as its contributions to Make in India, one stands out: Dhanush, the first indigenous 155mm x 45 calibre artillery gun. It is a long-range artillery gun produced in India and the OFB handed it over to the army in April 2019.
From tank engines to ammunition, and propellants to troops' comfort articles like boots and blankets, there is a long list of products being made in India.
OFB signed a contract with the defence ministry on October 25, 2018 for up-gunning the existing 130mm M-46 artillery guns to 155 mmx45 calibre. OFB will up-gun 300 existing guns, which are to be supplied to the Army in four years. The OFB has also indigenously developed 155mmx52 Cal Mounted Gun System (MGS) in association with BEML and BEL.
The Question Of Exports
One piece of statistic often thrown at the OFB is that 80% of its orders come from the armed forces, giving it a captive audience, so to speak, and “no competition whatsoever”. The OFB says that is changing. “More importantly, we are looking at exports as we cannot be dependent on one customer. Export at present is hardly anything when you look at our entire turnover. But if you look at ammunition, 7% to 8% of the ammunition we make is exported. We hope to make it 10%,” Kumar said.
While he did not name individual countries given the confidentiality clauses signed, he said most of the clients were in West Asia, Southeast Asia, Africa and Latin America. “There are also some big defence industries that are buying sophisticated hardware from us,” he added.
OFB earned Rs 238 crore from exports in 2017-18 and is now exploring new markets in Africa and the developing world. One official said that was a major jump, considering the average exports per year over the past 10 years has not crossed Rs 50 crore.
“Apart from exporting established products, OFB’s technological expertise is also leading to enquiries for new products which along with growth drivers would lead to a more visible footprint in the technical market. In this context, it is a matter of pride that 155mm barrels from OFB are being exported for testing purposes. This is recognition of OFB’s high-quality standards,” Mukherjee said.
Kumar pointed out that the Centre, even in the existing structure of OFB, brought about some changes in the past 4-5 years. “Factories are now working on several new products and endeavouring to bring newer technologies,” he said.
Quality, Delays & Corporatisation
Complaint from the armed forces on ordnance purchases has been that the items are overpriced, sometimes inferior in quality and almost always delayed. And while the ordnance factories argue they are caught in the rules of a government set-up and grapple with inconsistent orders and repeated change of specifications of items, leading to delays, the defence ministry believes corporatisation is the way forward.
INSAS rifles and the Arjun tank are two examples often thrown at the ordnance factories which, in turn, demand a level playing field, free from the stringent checks and controls of the ministry, including on R&D, and uncertainty of orders.
The DoDP, which is playing the lead role in the proposed conversion, argues that corporatisation is unavoidable and a change would benefit both the OFB and the armed forces in the future, while making India more self-reliant.
Multiple committees in the past 15 years — the most prominent being the one chaired by TKA Nair, former adviser to the Prime Minister — have recommended changing the business model of the OFB to bring about more accountability, enhance quality, reduce costs and boost turnover and exports.
However, the 80,000-odd employees working at these factories see the move as only one step towards privatisation. Opposition began in July when news first broke that the Centre is actively considering corporatisation. The employees, led by three strong federations/unions, held a series of protests and a weeklong tools-down strike between August 20 and August 26 that brought production to a standstill. While the Centre managed a truce and convinced employees to withdraw their strike, which was initially declared for at least a month, the issue hasn’t died down.
Kumar said, “Of course, the Centre as an owner will take a decision on what business model OFB should follow. It is not for us to speak about it. But I can definitely say one thing — functioning as a government department, we are bound by so many business rules whereas a company is always more flexible in decision making, which is a well-known fact."
Union representatives, however, told TOI that the very first step taken by the government after they were promised continuous dialogue has happened without consultation with the three federations: The All India Defence Employees Federation (AIDEF), the Indian National Defence Workers Federation (INDWF) and the Bharatiya Pratiraksha Mazdoor Sangh (BPMS).
"They haven't consulted us before finalising the terms of reference of the panel, while we were assured there will be a dialogue. We will come up with talking points to counter this," C Srikumar, general secretary, AIDEF, said.
1951-January 2015
Pradeep Thakur
Ordinance Raj: 8 ordinances issued in 225 days of Modi govt
Narendra Modiled NDA government has issued eight ordinances in 225 days since assuming office on May 26 — an average one every 28 days — but previous Congress governments have been far from shy of promulgating ordinances, holding a near unassailable record given their long tenures. Modi’s “governance through ordinance” model is as good or bad as late Indira Gandhi’s who was PM for nearly 16 years or 5,825 days. Indira had the distinction of issuing the highest number of 208 ordinances during her premiership, an average one ordinance every 28 days or same as that of Modi who has been in office for just over seven months.
Unlike the Modi government that lacks a majority in Rajya Sabha, earlier Congress regimes did not face such a dis advantage, lending weight to the view that governments have seen ordinances as legitimate Constitutional options. India’s first PM Jawaharlal Nehru ruled for a little short of 17 years or 6,126 days and issued as many as 200 ordinances, second only to his daughter. His average was one ordinance every 31 days.
If we rank PMs according to the number of ordinances their government issued, the top 4 slots go to Congress for the highest number of ordinances, followed by BJP’s Atal Bihari Vajpayee promulgating 58 ordinances and Rajiv Gandhi with 37.
Lal Bahadur Shastri brought in only nine ordinances during his 581-day stint as PM, an ordinance every 65 days. Shastri was premier from June 9, 1964 to January 11, 1966. Performance of Manmohan Singh is praiseworthy too as he brought in just 61 ordinances in his ten-year rule — an ordinance every 60 days.
As far as compulsion of bringing in ordinances is con cerned, Modi is hampered while both Indira and Nehru had strong majorities for most of their terms in both the Houses of Parliament. During the Emergency between 197577, the Indira government issued 51 ordinances.
In the last winter session of Parliament, Rajya Sabha was stalled by a united opposition, resulting in non-passage of key bills in the upper House including those cleared by Lok Sabha such as the Insurance Bill and Coal Mines. In the winter session as compared to LS that worked for 98% of scheduled time, the RS worked for 59%.
The government brought in ordinances to start coal auction and allow FDI in insurance. It also brought in an ordinance on land acquisition among others. On Tuesday, the President promulgated the eighth ordinance of Modi government.
Coalition governments: the worst
Jan 21 2015
`UF govt issued record 3 ordinances a month'
The Narendra Modi government has countered the opposition's criticism over a series of ordinances introduced by it, arguing that governments in the past have adopted a similar approach, while maintaining that the current administration's stance was necessitated by obstruction of key legislations by political parties in Rajya Sabha. Sources said since Independence, 637 ordinances were promulgated over a 62year period, which is over 10 annually. While 456 ordinances were issued during the 50 years that Congress was in power, some of the coalition governments were the most frequent users.
For instance, the United Front government saw the passage of 61 bills during its term in office but issued a record 77 ordinances -which works out to three a month.
Quoting parliamentary data, sources said during Jawaharlal Nehru's stint, 70 ordinances were issued, while Indira Gandhi's term from 1971-77 saw 77 such actions.During the five years of Rajiv Gandhi's government, there were 35 such instances, while there were 77 during Narasimha Rao's five-year tenure.
During the Modi government's seven-month term, eight ordinances have been promulgated, including those to amend provisions related to land acquisition laws and those on coal, mining and insurance, prompting protests from opposition parties. “Being in government, we have tried to take opposition parties on board on all issues, but the whole country has seen their attitude in Rajya Sabha during the winter session,“ said a government official defending the ordinance route.
On Monday , President Pranab Mukherjee, who has signed the ordinances, said these were meant for specific purpose “to meet an extraordinary situation under extraordinary circumstances“ but maintained that a noisy minority could not be allowed to “gag“ a patient majority in Parliament.
NDA mulls way to tackle RS roadblock
As the Budget session approaches, the Modi government’s main concern is to replace the ordinances with bills and ensure their passage in Parliament. What the government fears is the roadblock in Rajya Sabha where the ruling NDA lacks the numbers, something the opposition capitalized on during the previous session to block a slew of reforms legislations.
Recourse to a joint session of the two Houses is under consideration, but it will be the last option if the opposition remains unrelenting and forces the hand of the government.
Preparing for the session, dates for which will be finalized by the Cabinet Committee on Political Affairs (CCPA), senior ministers of the Modi government, including parliamentary affairs minister M Venkaiah Naidu and his junior minister M A Naqvi, met at the Parliament House to chalk out strategies. Naidu’s suggestion was to first use the traditional and conventional ways of talking to the opposition parties. But some were of the view that the government should flex its muscles, sources said.
Quality issues
2019: Shoddy ammunition hitting military: CAG
Rajat Pandit, Dec 7, 2019 Times of India
Shoddy manufacture of critical ammunition by the Ordnance Factory Board has once again come to the fore, with the Comptroller and Auditor General now castigating the state-run entity for compromising operational military readiness by failing to meet a “significant quantity” of the Army’s requirements as well as supplying defective fuses leading to multiple accidents.
TOI had reported on May 15 that the Army had sounded alarm over the unacceptably high number of accidents taking place in the field due to poor quality of ammunition being supplied for tanks, artillery, air defence and other guns by the OFB, which has 41 ordnance factories under it with an annual budget of over Rs 15,000 crore.
The Army told the defence ministry that the rise in ammunition-related accidents, taking place once a week on an average, were causing “fatalities, injuries and damage to equipment” regularly. This was “leading to the Army’s loss of confidence in most types of ammunition” being manufactured by OFB.
Tabled in Parliament on Friday, the CAG report on the OFB’s performance for 2017-2018 painted an equally alarming picture. The Army and Navy reported at least 36 accidents from 2013-14 to 2017-18 due to “fuse-related defects/problems” in nine types of ammunition that were studied. These included 81 mm high-explosive mortar bombs, 40 mm HE rounds for L-70 air defence guns, 84 mm ‘illuminating’ munitions for rocket launchers and 125 mm HE shells for T-72 tanks, it said.
Fuses are an essential and critical part of ammunition to provide safe and reliable detonation at the desired time and place. Defective fuses can lead to bursting of barrels as well as accidental and premature explosions. Apart from “inadequate quality checks”, there were “abnormal delays” in completing such “defect investigations”, which stymied “remedial” measures by the factories concerned, the CAG said.
Power to promulgate, repromulgate Ordinances
A
Khadija Khan, May 25, 2023: The Indian Express
An Ordinance “shall have the same force and effect as an Act of Parliament”. But the government is required to bring an Ordinance before Parliament for ratification — and failure to do so will lead to its lapsing “at the expiration of six weeks from the reassembly of Parliament”.
Ordinance in Constitution
Under Article 123 of the Constitution (“Power of President to promulgate Ordinances during recess of Parliament”), “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 Ordinances as the circumstances appear to him to require.”
An Ordinance “shall have the same force and effect as an Act of Parliament”. But the government is required to bring an Ordinance before Parliament for ratification — and failure to do so will lead to its lapsing “at the expiration of six weeks from the reassembly of Parliament”.
The Ordinance may lapse earlier if the President withdraws it — or if both Houses pass resolutions disapproving it. (Rejection of an Ordinance would, however, imply the government has lost majority.)
Also, if an Ordinance makes a law that Parliament is not competent to enact under the Constitution, it shall be considered void.
Since the President acts on the advice of the Council of Ministers, it is in effect the government that decides to bring the Ordinance. The President may return the recommendation of the Cabinet once if she feels it warrants reconsideration; if it is sent back (with or without reconsideration), she has to promulgate it.
Article 213 deals with the broadly analogous powers of the Governor to promulgate/ withdraw an Ordinance when the state legislature is not in session.
An Ordinance is valid for six weeks, or 42 days, from the date on which the next session starts. If the two Houses start their sessions on different dates, the later date will be considered, say the explanations in Articles 123 and 213.
Repromulgation of Ordinance
If, for whatever reason, an Ordinance lapses, the only option for the government is to reissue or repromulgate it. In 2017, the Supreme Court examined a case where the state of Bihar re-promulgated an Ordinance several times without placing it before the legislature. (Krishna Kumar Singh and Another v. State of Bihar)
A seven-judge Bench of the court, which included now Chief Justice of India (CJI) D Y Chandrachud, reiterated that legislation should normally be done by the legislature, and the Governor’s power to issue an Ordinance is in the nature of an emergency power.
The court clarified that there might be circumstances permitting the re-promulgation of an Ordinance — however, it said, repeated re-promulgations without bringing the Ordinance to the legislature would usurp the legislature’s function, and will be unconstitutional.
The court declared the actions in that case to be “a fraud on constitutional power”, and said that the Ordinances were repromulgated in violation of the SC judgment in Dr D C Wadhwa and Ors v. State of Bihar and Ors (1986).
In D C Wadhwa, a challenge was mounted against the power of the Governor to repromulgate various Ordinances in Bihar, after 256 Ordinances were promulgated between 1967 and 1981, out of which 69 were repromulgated several times and kept alive with the permission of the President.
A Constitution Bench of the Supreme Court headed by then CJI P N Bhagwati held 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.”
If the government wishes for the Ordinance to continue in force beyond the six-week period, it “has to go before the Legislature”, which is the constitutional authority entrusted with law-making functions.
The court also said that it would “most certainly be a colourable exercise of power for the Government to ignore the Legislature” and “repromulgate the Ordinance” while continuing to regulate the life and liberty of its citizens through Executive-made Ordinances.
Re-promulgating without placing before house
SC warning on this kind of fraud
AmitAnand Choudhary, SC warning on ordinance fraud, Jan 3, 2017: The Times of India
`Should Not Be Re-Promulgated Without Being Placed Before House'
The Supreme Court held on Monday that re-promulgation of ordinances without being placed before the legislature was constitutionally impermissible as it amounted to bypassing the legislative body which was the primary source of lawmaking authority in a par liamentary democracy .
A seven-judge constitution bench held that government's decision to bring ordinance can be reviewed by judiciary and said that it was obligatory on the gov ernment to place the ordinance before the legislative body for its approval. Failure of governments, at the Centre as well as states, to place ordinances before Parliament and state legislatures would itself constitute a fraud on the Constitution.
The majority verdict, by Justices AK Goel, UU Lalit, DY Chandrachud and L Nageswara Rao, held that “re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and governors“.
“The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law-givers under the Constitution. Open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through lawmaking,“ it said.
Chief Justice TS Thakur, who was heading the bench, also agreed with majority verdict on the issue but differed on one aspect. “I am in complete agreement with the view expressed by my esteemed brother Chandrachud, that repeated repromulgation of the ordinances was a fraud on the Constitution especially when the government of the time appears to have persistently avoided the placement of the ordinances before the legislature.“ The Chief Justice, however, questioned whether it is mandatory for the government to place the ordinance before legislative body saying that the matter should be examined in a separate proceeding.
Justice Madan B Lokur, also differed stating, “There could be situations, though very rare, when re-promulgation is necessary .“
The court said that apex court's `hope and trust' that lawmaking through re-promulgated ordinances would not become the norm had been belied by successive governments.
