The Constitution of India very clearly provides legislation with the task to make laws for the better governance of the country. Following the ideals of democracy, Our Constitution provides legislation with two houses i.e. Lok Sabha (Lower House) and Rajya Sabha (upper house) of the Parliament. These two houses of the Parliament is in session for most of the year. “But there are times when both the houses of the parliament is not in session, so here the question arises that who has the power to legislate when the parliament is not in session?” “The answer to this question lies within the Constitutional provisions that deal with the power of the President as well as the governor of the state to make law when there is no parliamentary session and there is an urgent need to have the law enforce.” The law made by the President is known as Ordinance.
About Ordinance -
“ 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”. When both or any one of the houses of the parliament is not in session due to a break for any other reason. And the law is urgently needed to be enacted on a Crucial and urgent subject of public interest, the president takes this action. “This is done by the President on aid and advice of the cabinet ministers headed by the PM of the country”.
“Article 123 of the constitution grants the president power to promulgate an Ordinance, likewise, the governor of the state can also issue an ordinance under article 213 of the Constitution when the state assembly is not in session”. “Both President, as well as the governor, have been entrusted with the responsibility of dealing with emergencies”.
Origin of Ordinance –
As we all know that our Constitution is a set of borrowing, with laws drawn from different countries and their constitution, legal structure and statues and moulded in a way it fits the need and desire of the people of the nation. Britain is one of the countries which affects Indian construction the most. “As it ruled India for more than 200 Years. The provisions of the Ordinance has been taken from the Government of India Act, 1935 which was given under chapter IV of this act”.
“Section 42 and 43 of the Government of India Act, 1935 explains the power and provisions regarding the promulgation of an ordinance during the recess of the Central Government”.
Need for the promulgation of an Ordinance –
Immediate action required – The president of India and the governor of every state have temporary law-making power provided under the Indian Constitution to deal with the unexpected and exceptional circumstances that demand urgent intervention and which the ordinary law cannot control the situation at that time.
The legislature not in session – Ordinance can be promulgated only when either house of the Parliament is not in session. However, if the law is unable to be passed with immediate effect to address the unexpected circumstances due to some of the other procedural formalities. The president of India and the governor of the states can promulgate an Ordinance.
The issue with frequent promulgation of Ordinance –
Deliberate bypassing of the legislature – There are times when the legislature is purposefully bypassed to avoid debate and deliberation on the controversial proposal on which there is an urgency to make law. This goes against the Democratic ethos and spirit.
As observed by the Hon'ble Supreme Court that Re-Promulgation of Ordinance is a ‘fraud' on the Constitution and supervision of the democratic legislative process.
E.g. Ordinance by the Bihar government between 1989- 1992 regarding the teaching of Sanskrit at private schools.
Undermining the doctrine of Separation of power- In the landmark judgement of ‘keshwananad Bharti v. the State of Kerala' (1973), the Hon’ble Supreme Court listed the separation of power as the basic feature of the Constitution.
i. In effect, the ordinance process is intended to address the legislative urgency when either house of the Parliament is not in session, it can not be a substitute for parliamentary legislation.
ii. However, article 123 of the constitution marks no limit on the number of ordinances passed
iii. The re- promulgation of Ordinance thus violates the feature of separation of power by essentially allowing the executive to make permanent laws and regulations without the consent or approval of the legislature.
Ignoring Supreme Court’s Judgments – Both the Central and the state governments have rejected the Supreme Court’s ruling even after the harsh decision on the use of the Ordinance. E.g. In 2013-14 Securities laws (amendment), Ordinance was promulgated thrice.
Satisfaction of the President – Ordinance should only be promulgated by the President if he is convinced that the condition prevailing within the country wants it, thus providing a scope of Power abuse.
Ordinance Raj – Ordinance That is being promulgated and Re promulgated often violates the spirit of the Constitution and leads to an ‘Ordinance Raj'. The Hon'ble Supreme Court strongly condemns this practice in the well-known case of ‘DC Wadhwa v. the State of Bihar' (1987) Calling it a constitutional fraud.
History of Re-promulgation of Ordinance –
The use of this provision of the Constitution recorded history for our nation. Talking about the period immediately after the independence between 1950 to 2014 there has been 679 Ordinance. Ordinance promulgation was at its peak during the leadership of Mr Mrs Indira Gandhi. A total number of 99 ordinances passed during this controversial regime (1971-77). The current government has promulgated 9 Ordinances within 8 months of his rule. They also passed as many as 5 Ordinances in 2019 just before the election season making the model code of conduct applicable. By the bringing of the 21st century every year, we witness as many as 8-9 Ordinances some of which were Re- promulgated. This misuse of Ordinance become so common as the term Ordinance Raj becomes commonplace as the signifier of this abuse by the Governments. The commission for the air quality management in National Capital Region and the adjacent area ordinance, 2020 was recently reenacted by the central government. (The ordinance creates an air quality control committee for the national capital region ). This raised concern about the practice of issuing an ordinance to render law, as well as the practice of re-promulgation of the Ordinance without obtaining parliament’s approval.
Only when both the house of Parliament is not in session or when the state assembly is not in session in the case of governors Ordinance making authority, Ordinance can be promulgated.
President issue an ordinance only on those subject matter, which is listed for the parliament to make laws. and same goes for the governor’s Ordinance making power, as it can only promulgate an Ordinance on the subject matters which as there for the legislature of state government.
The ordinance is bound by some legislative constraints as an act of Parliament. As a result, the Ordinance can not limit or exclude any of the Constitutional Fundamentals rights.
Any ordinance issued must be laid down before the house of Parliament or state legislature within six weeks of reassembly of the Parliament and it must be approved within six weeks of reassembly of the Parliament.
When the bill to replace the ordinance is introduced in the house, it should be accompanied by the statement outlining the circumstances that necessitate immediate legislation through the way of Ordinance.
44th Constitutional Amendment has reiterated that the satisfaction of the President to promulgate ordinance could be challenged in case an ‘immediate action' was not required
Judicial Safeguard –
Hon'ble Supreme Court in the landmark case of “R C Cooper v. Union of India” (1970) held that the President the decided n to issue an ordinance could be questioned on the ground that “immediate action” was not taken and the ordinance was primarily used to avoid debate and discussion in the legislature.
It was argued in the “DC Wadhwa v. The State of Bihar” (1987) that the executive’s legislative power to promulgate Ordinance can only be used under extraordinary situations and not a replacement for the legislature’s legislative power.
The Supreme Court held that in the case of “Krishna Kumar Singh v. The State of Bihar” that the power to issue an Ordinance is “ Conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.
This whole article was designed to gain a better understanding of the current state of the Ordinance provisions in our country. There has been long speculated that the central government as well a the state governments, have engaged in the practice of re promulgating Ordinances after the 6th month’s cycle has been expired without placing them before the legislative house for their approval. It has now become the tool in the hand of Governments to avoid the statuary mandate which was not the purpose of the framers of the Indian Constitution when they adopted this clause from the Government of India Act, 1935.
The Ordinance provision when framed was intended to deal with the emergency and immediate requirement of the regulation within the county, clarified by the Hon’ble Supreme Court in the various landmark cases. And it is an emergency provision that the government has incorrectly used. It was Undoubtedly a significant provision with safeguards in place to ensure that it is not abused, such as Judicial Review, legislative committee review etc.