Ordinances- Why and How?

May 25, 2023

The central government recently promulgated an Ordinance that undid the unanimous verdict of a five-judge Constitution Bench of the Supreme Court, which gave the elected government of Delhi control over the transfer and posting of officials in the National Capital Territory (NCT), except with regard to public order, police, and land.
The ordinance gave the Lieutenant Governor of Delhi (appointed by the Centre) power over services.
It established a “National Capital Civil Service Authority” comprising the Chief Minister and two senior IAS officials.
The authority would decide matters “by majority of votes of the members present and voting”.

ABOUT ORDINANCE

Ordinances are promulgated by President of India.
An ordinance is a law, and could introduce legislative changes.
Article 123 of the Constitution deals with the “Power of President to promulgate Ordinances during recess of Parliament”.
President acts on the advice of the Council of Ministers to promulgate ordinances.
The President can only promulgate an Ordinance when both houses or either of the house is not in session.
An ordinance can be retrospective in nature.
Lapse
- The Parliament has to approve the ordinance within six weeks (42 days) of its reassembly.
- The Ordinance may lapse earlier if the President withdraws it.
- Ordinance will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Associated cases
- DC Wadhwa vs. State of Bihar (1986) – “an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature.”
- AK Roy vs. Union of India (1982)– The Supreme Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.
- Krishna Kumar Singh and Another v. State of Bihar (2017)- SC held that legislation should normally be done by the legislature, and the Governor’s power to issue an Ordinance is in the nature of an emergency power.