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Content

• Introduction
• Important SC Judgments

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Introduction

• Article 123 (Article 213 for Governors) of the constitution empowers the President to promulgate ordinance during recess of Parliament. The Ordinance making power is the most important legislative power of the President. It has been vested in her to deal with unforeseen and urgent matters.
• These ordinances have the same force and effect as an act of Parliament but are in the nature of temporary laws.

What can ordinance do?

• It cannot amend constitution. Otherwise, it can do everything which parliament is empowered to implement.

Constitutional Safeguards: The exercise of the Ordinance power is subject to 4 limitations:

i. Ordinance can be promulgated only when atleast one of the Houses of the Parliament is not in session.
ii. President can make ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.

• In Cooper case, (1970), the Supreme Court held that President’s satisfaction can be questioned in a court on the ground of Malafide.

iii. His ordinance making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament. Two implications – Subject restrictions and Article 13 restriction.
iv. Every ordinance issued by president during recess of Parliament 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.

Statement explaining the circumstances.

• The rules of Lok Sabha require that whenever a bill seeking to replace an ordinance is introduced in the House, a statement explaining the circumstances that had necessitated immediate legislation by ordinance should also be placed before the Houses.

Important SC Judgments

• In Cooper case, (1970), the Supreme Court held that President’s satisfaction can be questioned in a court on the ground of Malafide.

 D C Wadhwa Case (1987)

• The court ruled that successive re-promulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to violation of the constitution and the ordinance so re-promulgated is liable to be struck down. It held that the exceptional power of law-making through ordinance cannot be used as a substitute for legislative power of the state legislature.

Krishna Kumar Singh vs. State of Bihar, 2017: In a blow to Ordinance Raj, a 7 judge Constitutional Bench of the Supreme Court widened the boundaries of judicial review to the extent that it can now examine whether the President or the State Governor was spurred by an “oblique motive” to bypass the legislature and promulgate an ordinance.

• Further, the court added that “the ordinance making power is not a parallel source of legislation. The court also held that “re-promulgation of ordinance is a fraud on the constitution and a sub-version of democratic and legislative process”.

Ordinance has been a handy tool since 1952.

• All the governments have misused the provisions of Ordinance to sideline the legislature.
• 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 years 2019 with 16 ordinance and the year 2020 with 15 ordinances have against started seeking a spike.

Why this temptation for ordinance?

• Reluctance to face legislatures on certain issues
• Lack of majority in upper house
• Repeated and willful disruption by opposition parties

Conclusion

• It is clear that misuse of ordinance making power is tantamount to violation of Separation of Power doctrine where executive takes on the legislative responsibility. Therefore, Ordinance mechanism should only be used for emergency and adverse matters.
• As governments, both at the Center and States, are violating this principle, the legislatures and the courts should check the practice.
• Opposition can also play an important role here by ensuring that house is functioning smoothly and thus government is given sufficient opportunity to get important laws legislated. Moreover, it will also provide the legislature an opportunity to hold government accountable by questioning it on the need of ordinance.

Example Questions

• “The ordinance route is bad, repromulgation worse” Illustrate with examples [15 marks, 250 words]
• Why is there a temptation to use the power vested in the President and Governors under Article 123 and 213 of the constitution? What is the opinion of Supreme Court on frequent use of this power? [12.5 marks, 200 words]
• Discuss the constitutional safeguards which are designed to prevent misuse of ordinance making power of the President. [10 marks, 150 words]