[In-depth] Repromulgation of Ordinances

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Recently, the ordinance on air quality management in NCR and adjoining areas was re-promulgated. The ordinance was re-promulgated on the grounds of lapse of the original ordinance due to the curtailment of the Budget session. The central government justified the move by arguing that it was necessary for the effective management of air quality in the given area. The issue brings to the fore the constant discussion over the legality of issuing ordinances. It further highlights the limitations of the Parliament in checking the executive. However, the question remains whether the ordinance is the right way of governance and does such a provision in the Indian constitution need a revisit?

What is an ordinance?

An ordinance is a law that could introduce legislative changes. Originally, the power to make laws rests with the legislature in the Indian constitution. However, in cases when the Parliament or a State Legislature is not in session, and ‘immediate action’ is needed, then the President or the Governor of a State can issue an ordinance.

Constitutional provisions on an ordinance

  • The ordinance making power of the President
    • Article 123 of the Indian Constitution grants the President certain law-making powers to promulgate ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.
    • Ordinances are issued by the President based on the advice of the Union Cabinet.
    • An ordinance may relate to any subject that the Parliament has the power to legislate on.
  • Limitations on the ordinance making power of the President
    • It has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists.
      • The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
      • The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
      • Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.
      • They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
  • The ordinance making power of the Governor
    • Just as the President of India is constitutionally mandated to issue ordinances, similarly, under Article 213, the Governor of a state can issue ordinances when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
    • Ordinances are issued by the Governor based on the advice of the State Cabinet.
  • Limitations on the ordinance making power of the Governor
    • The powers of the President and the Governor are broadly comparable concerning Ordinance making.
    • The Governor of a State can promulgate an ordinance only when the State Legislative Assembly is not in session or where there is a Legislative Council in a State and both the Houses are not in session.
    • The Governor cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
    • Ordinances must be approved by the State Legislative Assembly or where there is a Legislative Council, by both Houses within six weeks of reassembling or they shall cease to operate.
    • They will also cease to operate in case resolutions disapproving the Ordinance are passed by the State Legislative Assembly or where there is a State Legislative Council, agreed to by the latter.
    • However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill. These are:
      • If a Bill containing the same provisions would have required the previous sanction of the President for introduction into the legislature.
      • If the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President.
      • If an Act of the legislature containing the same provisions would have been invalid unless it received the assent of the President.

Promulgation/re-promulgation of ordinances – data and facts

  • Ordinances are only temporary laws as they must be approved by Parliament within six weeks of reassembling or they shall cease to operate.
  • However, governments have promulgated some ordinances multiple times.
  • A recent report stated that the Kerala Assembly promulgated the highest number of ordinances in the COVID-hit 2020.
  • Many of these 81 ordinances have been re-promulgated by the government.
  • The other States that followed Kerala are Karnataka (24), Uttar Pradesh (23), Maharashtra (21) and Andhra Pradesh (16).
  • Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law-making body.
  • Since the beginning of the first Lok Sabha in 1952, 637 ordinances have been promulgated till 2014.
  • In the first 30 years of India’s parliamentary democracy, there was one ordinance promulgated for every 10 Bills introduced in Parliament.
  • In the following 30 years, the ratio was two ordinances for every 10 Bills.
  • A total of 25 Ordinances have been promulgated during the term of the 15th Lok Sabha.
  • In the 16th Lok Sabha (2014-19), the number jumped to 3.5 ordinances for every 10 Bills.
  • In the current Lok Sabha, it is, so far, 3.3 ordinances to every 10 Bills.

Issues/debates over promulgation/re-promulgation of ordinances

  • In conflict with parliamentary supremacy 
    • It is debated that re-promulgation is fundamentally at odds with the principle of parliamentary supremacy. 
    • The Constitution spells out requirements before resorting to the extraordinary measure of promulgating an ordinance. 
    • It is observed that the executive has converted the emergency power into a source of parallel law-making that is unethical to the scheme of the Constitution.
    • Ordinances are seldom brought before the legislature but are reissued, again and again, violating the spirit of the Constitution.
  • Against the very idea of separation of power
    • The Constitution of India tasked the various organs of government with various functions.
    • As per the arrangement, the legislature (Parliament at the Centre, Legislative Assemblies and Legislative Councils at the State Level) are tasked with the primary job of making laws.
    • The executive is entrusted with the duty to administer the country by enforcing these laws.
    • The judiciary’s duty is to interpret the laws, see if they are being followed, and, where required, and review them to ensure that they are constitutionally compliant.
    • However, the executive’s power to issue ordinances, therefore, goes against this general grain of command; for it acts neither as a check nor as a balance on the authority exercised by the other branches of government.
  • Abuse of the exceptional power
    • Ordinance promulgation/re-promulgation should be carried out only during exceptional circumstances under Article 123(President) and 213(Governor) as per the Indian constitution.
    • In practice, however, ordinances have scarcely been used as a purely exceptional measure. It is often been used to bypass the democratic process of argument and deliberation and has become an alternative tool of legislation.
    • Time and again ordinances have been promulgated and re-promulgated to bypass the debates and deliberations in the central and state legislatures.
  • The question of judicial review
    • There had been debates for a long time over the review of the exceptional circumstances which lead to the promulgation of ordinances. The courts refused to inquire into the nature of circumstances forming the basis of subjective satisfaction.
    • However, later on, it was held that the power to promulgate ordinance must be used sparingly, only when the situation requires immediate action, and when there are no other effective remedies.

Supreme Court judgements on ordinances

  • In RC Cooper vs. Union of India (1970), the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged because ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
  • However, in 1975, the 38th Constitutional Amendment Act inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
  • In 1978, the 44th Constitutional Amendment Act deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance.
  • In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.
    • It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”.
  • In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively.
    • This implied that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.
  • In DC Wadhwa vs. State of Bihar(1987), it was argued that the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
    • Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature.
    • A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years.  
    • The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances.
  • In Krishna Kumar Singh v State of Bihar (2017), a seven-judge constitution bench of the Hon’ble Supreme Court of India had held that re-promulgation of an ordinance is a fraud on the Constitution.
    • The Court also held that the satisfaction of the President of India under Article 123 and of the Governor under Article 213 while issuing an Ordinance is not immune from judicial review
  • Such judgements are cited by courts time and again to review the validity of promulgation and re-promulgation of ordinances.

Way forward

In a parliamentary democracy with separation of powers as one of the basic features, it should be kept in mind that debates and discussions are the fundamentals of democracy and efforts to curtail these may shake the very foundations. The executive must restrain the use of its exceptional and emergency powers and endeavour to build an environment where there is a place for discussion and debates that in turn will help in pointing out the shortcomings to come to a better decision for the welfare of all.

Practise Question

Q. Critically examine the constitutionality of promulgation/re-promulgation of ordinances and substantiate your answers with relevant Supreme Court judgements.

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