Ordinance

Syllabus: General Studies Paper 2

Kerala governor took exception to the State government’s move to reissue ordinances instead of getting the executive orders ratified by the Assembly.

• The government had sent Mr. Khan 11 ordinances for repromulgation. 
• They included the controversial Kerala Lok Ayukta, 1999, amendment ordinance.
• The Kerala Cooperative Societies Act, 2022, amendment ordinance.
• The Supreme Court had ruled (in January 2017) that re-promulgation of ordinances tantamount to subversion of the democratic legislative process

Ordinance

• Ordinances are temporary laws which can be issued by the President when Parliament is not in session. 
• The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. 
• This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.

Conditions with regards to the president’s ordinance making powers:

• When one or either of the two Houses of Parliament is not in session, the President may promulgate an Ordinance.
• The President cannot issue an Ordinance unless he is satisfied that the situation necessitates ‘immediate action.’
• The President’s authority to issue ordinances is justiciable if intentions are proved malafide.

Ordinance Making Power of Governor

• Article 213 states that the Governor of the state may issue ordinances when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.

Properties of the Ordinance

• President can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. 
• He can make an ordinance only when he is satisfied that the circumstances make it necessary for him to take immediate action.
• His ordinance-making power is limited. An ordinance can be issued only on those subjects on which the Parliament can make laws.
• An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights .
• Every ordinance issued by the President during the recess of parliament must be laid before both the Houses of Parliament when it reassembles.
• His power of ordinance-making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.

Misuse of ordinance making power

• The misuse of ordinance powers is just one way in which the quality of democracy in India has been eroded, a phenomenon also known as ‘democratic backsliding’.
• A lack of public trust in democratic institutions and instruments, including the Constitution.
• Undermining the Doctrine of Separation of Powers: In the Kesavananda Bharati vs. State of Kerala case 1973, the Supreme Court listed the separation of powers as a “basic feature” of the Constitution.
• The repromulgation undermines the separation of powers, as it effectively allows the executive to make permanent legislation without legislative input or approval.

Ignoring Supreme Court’s Judgements

• In the D.C. Wadhwa case, the court took up the issue of promulgation of 256 ordinances, of which 69 were repromulgated in Bihar between 1967 and 1981.
• 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.
• Further, the court said that there was no such practice of repromulgation by the centre.
• Later, the Centre too started to follow the lead of Bihar. For example, in 2013 and 2014, the Securities Laws Ordinance promulgated 3 times, Land Acquisition Act  twice.
• In 2017, the matter came up again in the Supreme Court. This time, the court gave a strong verdict. It declared that Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
• However, the Centre and states are not following this judgement. It is evident in the current case of the Commission for Air Quality Management.

Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature. 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.