Re-promulgation of Ordinance

IN NEWS:

• Recently, Central government has repromulgated the ordinance that establishes a commission for air quality management in the National Capital Region. This raises questions about the practice of issuing ordinances to make law, and that of re-issuing ordinances without getting them ratified by Parliament.

ORDINANCE:

Under the Constitution, the power to make laws rests with the legislature. However, in cases when the legislature is not in session, and ‘immediate action’ is needed, the President/Governor can issue an ordinance.

• Constitutional provisions:
  • Article 123 empowers the President to promulgate ordinances during the recess of Parliament. Under Article 213, the governor of a state can also promulgate ordinances.
  • President/Governor can promulgate or withdraw an ordinance only on the advice of the council of ministers. Hence, it is not a discretionary power.
• Features:
  • An ordinance is a law, and could introduce legislative changes.
  • It may modify or repeal any act of Parliament or another ordinance. It can alter or amend a tax law also.
  • It can be retrospective, that is, it may come into force from a back date.
  • It cannot be issued to amend the Constitution or take away any of the fundamental rights.
• Validity:
  • Every ordinance issued must be laid before both the Houses of Parliament when it reassembles. If the ordinance is approved by both the Houses, it becomes an act.
  • If Parliament takes no action at all, the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament.
  • The President can also withdraw an ordinance at any time.
• Limitations:
  1. The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
  2. The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
  3. Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.
  4. Ordinance-making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament.

• Limitations of Governor:
  • The powers of the President and the Governor are broadly comparable with respect to Ordinance making.  However, the Governor cannot make an ordinance without the instructions from the President in three cases:
    1. If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.
    2. If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President.
    3. If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.

STATISTICS:

• In the 1950s, central ordinances were issued at an average of 7.1 per year. The number peaked in the 1990s at 19.6 per year, and declined to 7.9 per year in the 2010s. The last couple of years has seen a spike, 16 in 2019, 15 in 2020, and four till now this year.

• According to the Lok Sabha secretariat, the UPA government had promulgated 61 ordinances between May 2004 and May 2014. The Modi government, since May 2014, has passed 76 bills through the ordinance route.
• States have also been using the ordinance route to enact laws. For eg: In 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.

SUPREME COURT’S JUDGEMENT ON ORDINANCES:

• RC Cooper v. Union of India case, 1970:
  • The Court held that the President’s satisfaction to issue ordinances can be questioned in a court on the ground of malafide. Hence, President’s satisfaction to issue ordinances is subject to judicial review.
• DC Wadhwa v. State of Bihar case, 1987:
  • It held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.
  • The court ruled that successive repromulgation of ordinances without any attempt to get the bills passed by the assembly would amount to violation of the Constitution and the ordinance so repromulgated is liable to be struck down.
• Krishna Kumar Singh v. State of Bihar case, 2017:
  • The court concluded that repromulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. This judgment widened the scope of judicial review of Ordinances.

ISSUES REGARDING ORDINANCES:

• Violates separation of powers:
  • When executive makes the laws through ordinances and re-promulgates them, it undermines the sovereignty of Parliament and the state legislatures as the primary law makers under the Constitution.
• Tool to bypass legislative:
  • Taking our country’s diversity and needs into account, there is a need for discussion, deliberation and debate on every issue of mass concern. But governments often use the ordinance route to avoid scrutiny by the legislative.
• Undermines judicial proclamations:
  • Despite repeated judicial rulings, there have been several instances where the government repromulgated ordinances with the purpose of prolonging the applicability.
• ‘Democratic backsliding’:
  • The debates in the Constituent Assembly make it clear that the Constitution-framers envisaged a limited ordinance-making power, which was to be exercised in a restrained manner. But frequent use and repromulgation of ordinances violate the core constitutional values.
• Undermines checks and balances:
  • An ordinance ceases to operate six weeks after the two Houses reassemble unless it is converted into an Act by then. But repromulgation sidesteps this limitation, leaving no room for legislative control.
• Absent in major democracies:
  • Most democracies including Britain, US, Australia and Canada do not have provisions similar to that of ordinances in India because legislatures in these countries meet year long.

WAY FORWARD:

• The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.
• The opposition must refrain from its obstructionist behaviour in the house, so that effective debates can take place.
• The legislatures and the courts should check the practice of repromulgation of ordinances and uphold their responsibility to the Constitution.
• The legislative can look into extending the frequency and duration of parliamentary sessions.

PRACTICE QUESTION:

Q. Successive re-promulgation of ordinances undermine the democratic ideals of Indian Constitution. Discuss?