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What is Ordinance? How frequent re-promulgation of ordinances violates the spirit of the Constitution?

What is Ordinance? How frequent re-promulgation of ordinances violates the spirit of the Constitution?

Relevance:

  • GS 2 || Polity || Central Government || President

Present Context:

  • The central government has re-promulgated the ordinance that establishes a commission for air quality management in the National Capital Region, or the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020.
  • This raises questions about the practice of issuing ordinances to make law, and that of re-issuing ordinances without getting them ratified by Parliament.
  • The Constitution permits the central (Art-123) and State (Art-213) governments to make laws when Parliament (or the State Legislature) is not in session.
  • As law making is a legislative function, this power is provided for urgent requirements, and the law thus made has an automatic expiry date.
  • The Constitution states that the ordinance will lapse at the end of six weeks from the time Parliament (or the State Legislature) next meets.
  • In the Constituent Assembly, while there was a discussion on how long the ordinance could remain valid (with some members asking for it to lapse within four weeks of promulgation as that would be sufficient time to call an urgent session of Parliament), no one raised the possibility of an ordinance to be re-promulgated.
  • Perhaps such an eventuality was beyond their imagination.

What is Ordinance?

  • Article 123 of the Constitution of India gives the power and authority to the President of India to issue an ordinance only when both the Houses of Parliament are not in session.
  • In addition, it states that any ordinance can have the same force and effect as a statute of Parliament only if it is laid before both the houses of the Parliament.
  • Further, Ordinance so made will hold good only for a duration of six weeks from the reassembly of Parliament.
  • Article 213 mandates near identical terms with respect to the ordinances on subject of State authority. It is understood that the authority to issue ordinances shall be used only to meet the emergent demands arising out of extraordinary situations.

Article 213 of Constitution of India:

  • The Governor of an Indian state draws ordinance making power from Article 213 of the Constitution of India.
  • This Article empowers the Governor to promulgate Ordinance, during recess of legislature, if circumstances exist which render it necessary for him to take immediate action.
  • To issue an Ordinance, the Governor must be satisfied with the circumstances that make it necessary for him to take immediate action.
  • The Governor cannot promulgate an ordinance if:
    • The Ordinance has the provisions which the governor would reserve as a Bill containing them for the President’s sanction.
    • The Ordinance has the provisions which are embodied in a bill that would require President’s sanction.
    • If an act of the State Legislature has the same provisions that would be invalid without the assent of the President.

Article 123 of constitution of India:

According to Article 123, The President can promulgate Ordinances during the recess of Parliament if:

  • At any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require;
  • An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions;
  • May be withdrawn at any time by the President Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

Issues with frequent promulgation of ordinances:

  • Intentional bypassing of the legislature: There are occasions when the legislature is purposefully bypassed in order to prevent discussion and deliberation on controversial legislative initiatives. This goes against the democratic ethos and spirit.
  • Ordinance re-promulgation: According to the Supreme Court, re-promulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, particularly when the government consistently avoids bringing the ordinances before the legislature.
    • For example, between 1989 and 1992, the Bihar Governor released a series of ordinances allowing the state to take over private Sanskrit schools.
  • Violation of the principle of separation of powers: The executive’s authority to issue ordinances violates the principle of separation of powers because lawmaking is the province of the legislature.
  • The satisfaction of the President: Ordinance can be promulgated only when the President is satisfied that circumstances exist for the same thus providing the scope of misuse of the power.
  • Repromulgation often breach the spirit of the Constitution: Ordinances published and reissued often breach the spirit of the Constitution and lead to an “ordinance raj.” The Supreme Court strongly opposed this activity in C. Wadhwa vs State of Bihar in 1987, calling it a constitutional fraud.
  • Since independence, several ordinances have been issued, clearly demonstrating that this power has been used often rather than being the last resort.
    • For example, during the 15th Lok Sabha’s term, the Securities Laws (Amendment) Ordinance, 2014 was re-enacted for the third time.
    • The Indian Medical Council (Amendment) Ordinance, 2010, was four times re-promulgated. Despite a 1986 Supreme Court ruling condemning such conduct, this occurred.
    • The 2019 Jammu and Kashmir Reservation (Amendment) Ordinance was viewed as a politically motivated move.
    • The present government has recently issued three ordinances: Farmers’ Produce Market Commerce (Promotion and Facilitation) Ordinance, 2020, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020, both tend to be abuses of power.

Two important cases against Re-promulgation of ordinances:

  • D.C. Wadhwa V. State of Bihar:
  1. The State of Bihar adopted a practice of re-promulgating the ordinances on a massive scale from time to time without their provisions being enacted into acts of the legislature.
  2. The practice was that, after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were re-promulgated containing substantially the same provisions almost in a routine manner.
  3. This practice was challenged by D.C. Wadhwa was against the constitutional provisions and against the condition of approval of Legislature after the fixed period of six months.
  4. It was held that large-scale Repromulgation of same ordinance repeatedly in a routine manner amounts to usurpation of legislative function by the executive, colorable exercise of power and a fraud on constitutional provisions.
  • Krishna Kumar Singh V .State of Bihar:
  1. The honorable in its majority opinion stated that re-promulgation of ordinance is constitutionally impermissible as it represents an effort to overreach the legislative body which is the primary source of law-making in a parliamentary democracy.
  2. Repromulgation defeats the constitutional scheme under which a limited power to issue ordinances is conferred to the President and the governors
  3. So, we can clearly see that this emergency provision is very much abused by way of re-promulgating or extending the tenure of ordinances again and again.
  4. In this conflict between the two branches of the Govt.- Legislature and Executive the third branch, Judiciary comes as a resolver by way of interpreting the constitutional provisions

Conclusion:

Our Constitution establishes a division of powers between the legislature, executive, and judiciary, with the legislature’s function being to pass laws. The executive branch must exercise caution and can only issue ordinances in unexpected or urgent situations, not to avoid legislative oversight and debate.

Mains oriented question:

The right to promulgate an ordinance is simply a power to be used under exceptional circumstances, and it cannot be used for political purposes.” Examine how and why the ordinance power has been used and abused since the country’s independence. (250 words)