India is democratic country. In our country, government has 3 organs, i.e., Executive(implement laws), Legislative(makes laws) & Judiciary(interpret laws).
When state wants to make laws then, the process is like, A Bill is presented to Lok Sabha and Rajya Sabha, then presented before President, and after getting assent of President, it becomes Act.
But Parliament or state legislature also has a recess period during which no bill can be presented as they are not in session. And, if during recess an urgency comes where a law is needed to protect the urgency then what? So far this type of situation, Constitution provides article 123 & 213 to protect the urgency situation which is known as Ordinance making power.
What is Ordinance?
- An Ordinance, within the context of governance and law, is a piece of legislation enacted by a non-legislative authority, often the executive branch of government, under specific circumstances.
- The provision of the Ordinance is mainly aimed at enabling the executive to make laws when the legislature is not in session or when an urgent matter demands immediate attention.
- An Ordinance, usually, has the same force and effect as an Act enacted by the legislative body. The only difference between the two is that while an Act is permanent, an Ordinance is of a temporary nature.
Article 123 of the constitution: Power of President to promulgate Ordinances during recess of Parliament
(1)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.
(2)An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance–
(a)shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly 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; and
(b)may be withdrawn at any time by the President.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.
(3)If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
Article 213: Power of Governor to promulgate Ordinances during recess of Legislature
(1)If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if–
(a)a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b)he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c)an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2)An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance–
(a)shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b)may be withdrawn at any time by the Governor.
Explanation.–Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of (hose dates for the purposes of this clause.
(3)If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a Slate which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.
Utilities of Ordinances:
- Emergency Measure: It is a much-needed emergency measure in the hands of the executive to meet any unforeseen situation or an urgent matter. It allows the executive to respond promptly to such matters without waiting for the regular legislative process.
- Unobstructed Governance: There may be instances where certain bills have been adequately deliberated upon in the Legislature, but could not be passed due to the obstructionist approach of the opposition. Promulgation of the ordinance ensures unobstructed governance in such cases.
Limitations of Ordinance Making Power:
- Violates Separation of Powers: As per the scheme of powers envisaged in the Indian Constitution, the law-making lies in the domain of the Legislature. By allowing the Executive to enter into the Legislature’s domain, the provisions for the ordinance violate the principle of separation of powers.
- Undermines Democratic Principles: At times, the executive takes the ordinance route to avoid debate and deliberations in the legislature on contentious legislative proposals. This undermines the democratic principles.
- Misuse: There have been instances of successive re-promulgation of ordinances, without making any effort to table the corresponding bill in the Legislature.
- As observed by the Supreme Court in the D.C. Wadhwa Case, during the period of 1967-98, some ordinances in Bihar were kept in force for 14 years by successive re-promulgation.
- Fear of Ordinance Raj: Frequent issuance and re-issuance of ordinances create an atmosphere of ‘Ordinance Raj’, where the executive relies on ordinances rather than engaging in meaningful legislative processes.
- Vague Provisions: As per the constitutional provisions, the President or the Governors can issue an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action. However, with no clear demarcation of urgent circumstances, the Executive has been taking regular reliance on this power instead of treating it as a last resort. Such examples are:-
- Securities Laws (Amendment) Ordinance, 2014: This ordinance was re-promulgated for the third time during the term of the 15th Lok Sabha which raised concerns about the circumvention of the legislative process and the lack of parliamentary scrutiny.
- Indian Medical Council (Amendment) Ordinance, 2010: This ordinance was re-promulgated four times, indicating a persistent disregard for judicial pronouncements and democratic norms.
RELEVANT CASE LAWS
D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378
Facts: The case of DC Wadhwa vs State of Bihar originated from a legal challenge posed by Dr. DC Wadhwa and others against a practice by the State of Bihar that had far-reaching implications on the democratic and legislative processes in India. The practice in question involved the promulgation and re promulgation of ordinances on an unprecedented scale, a method that effectively circumvented the legislative assembly and undermined the democratic process.
The state government had a practice of repeatedly re-promulgating ordinances without enacting them into laws.
Issues: Whether re-pomulgation of ordinances by the Governor of the State of Bihar amounted to misuse of the power conferred to the governor by article 213 of the Constitution?
Judgement: The Apex Court held that, the determination of the question depends upon the true interpretation of article 213 which confers power on the governor of a state to promulgate ordinances.
1. Power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action become necessary at a time when the legislature is not in session.
2. Every ordinance promulgated by the Governor must be placed before the legislature and it would cease to operate at the expiration of six weeks from the reassembly of the legislature or if before the expiration of that period a resolution disapproving it is passed by the legislative assembly and agreed to by the legislative council, if any.
3. 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”.
Supreme Court of India emphasized that the power to issue ordinances is an emergency measure intended for situations requiring immediate action when the legislature is not in session. This power cannot be used to serve political ends or circumvent the legislative process.
Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
Facts: The Bihar government repeatedly re-promulgated the Bihar Non-Government Sanskrit School (Taking over of Management and Control) Ordinance (1989) for several years without enacting it into a law. This ordinance stated that around total of 429 Sanskrit schools which are private controlled will be now taken over by the Government. Due, to which large amounts of employees and teacher who were part of these private schools, in a shift were transferred to became the employee of the state government. This ordinance was re-promulgated many a times and no law could ever be passed related to this ordinance as it was not presented in the state legislature, not even a single time. Therefore, for the payment of salary and other dues, the teacher and employees filed petition before the High court of Patna. High court while dismissing the petition held that successive ordinance promulgation without any cogent reason is not valid in the eyes of law. Against the above order, an appeal was filled in the apex court.
Issue: Whether the Bihar government ordinances was legally valid in its nature?
Whether re-promulgation of an Ordinance goes against the basic spirit of constitutionalism?
Whether Article 123 or 213 makes out mandatory obligation on the part of the executive to present the ordinance in the Parliament and State Legislature respectively?
Judgement: The judgement stated that all ordinance which are re-promulgated again and again and are not placed before the Legislature are against constitutionalism and therefore the salary which has already been given to the teachers must not to be recovered from them as they are not given the status of government teacher. The important aspect that court addressed is that the power of the President or Governor to promulgate ordinance must not be construed as a law-making body parallel to the legislature and court also delve into the different expressions used in the constitution of India such as repeal, void, cease to have effect and cease to operate and stated that the express ceased to operate and void.
The court stated that the first three ordinances are valid and their benefit given to the employees till these ordinances ceased to operate are valid and the employee will not get any enduring right from these ordinances. The court also held that the directions given by the High court with regard to the salary and interest are valid.
A. K. Roy v. Union of India (1982) 1 SCC 271
PRESENT CASE
Q. 5B/2022. In the present case, the Governor’s action to re-promulgate the same ordinance during multiple sessions of the legislature violates constitutional principles and amounts to an abuse of power. The Governor is not above the Constitution and must act within the framework of Article 213. Hence, the re-promulgation of the same ordinance in four successive sessions indicates a clear breach of constitutional principles and can be judicially challenged.
