Introduction – Ordinances in the News
Since the imposition of the nation-wide lockdown on account of the COVID-19 pandemic, the President has promulgated 11 ordinances, of which 7 related to the pandemic and the health sector, 3 were the farm ordinances that have since been enacted into laws after the Parliament came back into session and 1 related to amendment of the Banking Regulation Act, which too has been enacted into a law. The rate of promulgating ordinances has seen a sharp rise in the last 6 years with many ordinances being re-promulgated after they have lapsed.
What is an Ordinance?
An ordinance is a law that is promulgated by the President of India, on the recommendation of the Union Cabinet, when the Parliament is not in session.
Similarly, the Governor of a state can also initiate ordinances when a Legislative Assembly is not in session when it is a unicameral legislature and when Legislative Assembly along with Legislative Council both are not in session when it is a bicameral legislature.
Article 123 of the Constitution grants the President the power to promulgate Ordinances.
This technique of issuing an ordinance has been devised with a view to enabling the executive to meet any unforeseen or urgent situation arising in the country when Parliament is not in session, and which it cannot deal with under the ordinary law.
Ordinance Making Power of the Executive
Comparison between Regular Legislation and an Ordinance
An Ordinance made by the President is a legislative act and not an executive act. Hence, it is a ‘law’ within the meaning of Constitution. This power of the President is Co-extensive with the legislative power of the Parliament itself. An Ordinance, therefore, cannot be promulgated with respect to a subject which is beyond the legislative competence of Parliament.
While the initiative for both an Ordinance and regular legislation comes from the Executive, the former is passed on a current basis and in case of the latter, the legislative sanction is post facto.
Unlike the passing of a regular bill, there is no scope for detailed discussion and arriving at consensus at the time of promulgation of Ordinances.
Like money bills and finance bills, there can be Ordinance on fiscal matters as well.
An Ordinance is also subject to judicial review on grounds of unconstitutionality. Courts have held that the motives of promulgating an Ordinance cannot be questioned in a Court of law, much like the act of the Legislature in passing a law. A Court may only declare an Ordinance invalid in case it transgresses the constitutional limits of the power.
Ordinance Making Power of the Governor: Article 213 deals with the power of Governor to legislate through Ordinances. This power of ordinance making is quite similar to the President’s power. Comparisons are listed below:
Ordinances, an Abuse of Parliamentary Democracy?
The Ordinance making power of the President is in reality a power vested with the Union Cabinet or the Council of Ministers. Moreover, the satisfaction of the President regarding the existence of circumstances that render it necessary for him to take immediate action is a subjective matter which cannot be probed or questioned in a court of law; and the precise nature of the action that he may decide to take in such circumstances is also left to his discretion and cannot be challenged. This is similar to the principle that the judiciary cannot examine the reason or motivation to enact a legislation by the Legislature, but merely comment on its constitutional validity.
The increase in the number of ordinances promulgated by the Government has sparked the debate on the use of ordinances to undermine the democratic process of legislating.
The Courts have, in various decisions clarified the power of making Ordinances. In D.C. Wadhwa & others v. State of Bihar (1986), the Supreme Court made following observations:
The power to promulgate an Ordinance is an emergency power which may be used where immediate action may be necessary at a time when the legislature is not in session. It is contrary to all democratic norms that the Executive should have the power to make a law; hence such emergency power must, of necessity, be limited in point of time.
A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the authority to do an act, to avoid that limitation by resorting to a subterfuge would be a fraud on the constitutional provision.
While the satisfaction of the President as to the existence of circumstances necessitating immediate action by issuing an Ordinance cannot be examined by Court, it is competent for the Court to inquire whether he has exceeded the limits imposed by the Constitution. He would be usurping the function of the Legislature if he, in disregard of the constitutional limitations, goes on re-promulgating the same Ordinance successively, for years together, without bringing it before the legislature.
Though, in general the motive behind issuing an Ordinance cannot be questioned, the Court cannot allow it to be ‘perverted for political ends’.
The Court in this case also made it abundantly clear that repeated re-promulgation of ordinances was unconstitutional.
An ordinance is not permanent. It is a stop gap measure for matters that need urgent attention when the Legislature is not in session. However, the motivation to use the power of promulgating Ordinances vested in the President and the Governors under Articles 123 and 213 of the Constitution is generally a result of one of the following three reasons:
Reluctance to face the legislature on particular issues.
Fear of defeat in the Upper House where the government may lack the required numbers.
The need to overcome standoff in the legislature caused by repeated and wilful disruption by a section of the Opposition.
In Krishna Kumar Singh v. State of Bihar (2017), a seven-judge bench of the Supreme Court stated that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution, noting that a 1989 ordinance by which the State government took over 429 Sanskrit schools in Bihar was promulgated several times until 1992, but not once tabled in the State Assembly.
The judgment widens the scope of judicial review of ordinances.
The court can go into whether the President or Governor had any material to arrive at the satisfaction that an ordinance was necessary and to examine whether there was any tilted motive.
Maintenance of constitutional decorum and legislative control over law making.
Use of an ordinance by the President/Union Cabinet need not always be a cynical move to privilege political expediency over parliamentary accountability.
The contention that ordinances are to be used only in times of exigent circumstances must also be balanced by the view that disruption of parliament as a political tactic plays a significant role in delaying urgent legislation. Moreover, a disruptive House may sometimes constitute a compelling circumstance in itself.