Ordinance Power

  • Ex President Pranab Mukharjee: Ordinances should be resorted to only in “compelling circumstances.”
  • According to PRS Legislative Research’s data 16 and 15 central ordinances were promulgated in 2019 and 2020 respectively. In the 2010s, the yearly average was 7.
  • States have also been using the ordinance route to enact laws. For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
  • Repromulgation of Ordinance by both centre and state is also increasing.
Constitutional Provisions:
Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws. Similar power is given to Governor under Article 213.
Why Ordinance are needed?
Ordinances are essentially enacted to effectively deal with any emergencies that may arise when the legislature is not in session. For e.g. the ordinance amending the criminal law that came in after the intense public pressure following the 2012 gang-rape & death of Nirbhaya was necessary. The ordinances are to be laid before each house of Parliament within 6 weeks from the reassembly of Parliament. Such an action is necessary so that the ordinance can get consent from the Members of Parliament who have been directly elected by the people.
What is the issue?
Ordinances have been promulgated even when there was no emergent circumstance. For instance, food security ordinance was just promulgated before the parliament session. Another instance is that of Governor of Bihar who promulgated more than 250 ordinances in the 1970s and kept that them alive for 1 to 14 years by re promulgation. Although such instances of the use of this power are not unconstitutional in strict sense, the supreme court has pointed out the cases of improper use of power and laid down certain guidelines.
It is important to mention here that framers of our constitution envisaged ordinance making power in order to deal with unforeseen and urgent matters. But since independence this exclusive power had been misused many a times.
What is the view of SC in this regard?
  • In RC Cooper vs. Union of India(1970) the Supreme Court while examining the constitutionality of the Banking Companies Ordinance, 1969 which sought to nationalize 14 of India’s largest commercial banks, held that the President’s decision can be challenged on the grounds that ‘immediate action’ was not required and the ordinance was passed primarily to by-pass the debate and discussion in legislature.
  • Similarly in DC Wadhwa vs. State of Bihar(1987), the court was examining that the then state government continued to re-promulgate ordinances without enacting their provisions into Acts of legislature. The supreme court ruled that repromulgation of ordinances is against Constitutional morality and is an act of Colourable legislation. Because through ordinance making power the Executive encroaches into the law-making function of the Legislature.
There had been times when this power was used positively. The Telecom Regulatory Authority of India was created in 1997 first by an ordinance and later by an Act of Parliament.
In the view of both usage and misuses the ordinance making power is an important one to meet the emergency and adverse matters. But it should not be used by the executives as a replacement tool for law making power of the legislature just for mere political motives.
Related Questions:
  • “In any case, ruling by ordinance is a British legacy of retaining control by the Crown. ” In the light of introduction of controversial ordinances in recent years by the union government, critically comment on the statement. (200 Words)
  • Recently the re-promulgation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015, created controversy regarding misuse of ‘ordinance’ power by the government. Critically examine the issue and comment if, in your opinion, such re – promulgations goes against democratic principles. (200 Words).
  • Both the union and state governments sometimes resort to ordinance route to “expedite development process” by passing related new legislations or amending existing ones. Do you think the promulgation of such ordinances is unconstitutional? In the light of recent ordinances passed by the union government, critically comment. (200 Words)
  • The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends. Critically discuss how and why the ordinance power has been used and misused since independence. (200 Words)

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