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Ordinance route is bad, repromulgation worse


The central government has repromulgated 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.


GS-II: Polity and Governance (Constitutional Provisions, Governance and Government Policies, Issues Arising Out of Design & Implementation of Policies)

Mains Questions:

Critically analyse the practice of issuing ordinances to make law and then re-issuing ordinances without getting them ratified by Parliament. (10 Marks)

Dimensions of the Article:

  1. Law Making Power under Indian Constitution
  2. Limitations on the power of making Ordinance
  3. Ordinances issued since the 1950s
  4. Cooper’s case (1970)
  5. Repromulgation of ordinances
  6. 2017 judgement

Law Making Power under Indian Constitution

  • The constitution provides legislative powers to the Parliament and the State legislatures.
  • It provides for a three-fold distribution of legislative subjects between the Centre and the states, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List) in the Seventh Schedule.
  • However, the constitution vests law-making powers in the executive that can be exercised in exceptional circumstances.
  • Accordingly, Ordinance making power has been provided to both the President and the Governors of the states.

Ordinance making power of the President

  • Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament.
  • Ordinances have the same force and effect as an act of the Parliament but are in the nature of temporary laws.

The History behind it

  • This power was first provided for in the Government of India Act, 1935 to allow the then governor-general of India to promulgate ordinances in such circumstances that made it necessary for him to take immediate action.
  • Constituent Assembly debates –
  • whether the executive should have the power to promulgate ordinances that would have the force of law.
  • Some argued that ordinances should be used only in the case of emergencies.
  • Others argued that law-making powers should rest only with the legislature, and not the executive.
  • As a middle ground limits have been provided in the constitution on the ordinance making powers of the President and the Governor.

Limitations on the power of making Ordinance

  • It is not a parallel power of legislation.
  • It can only be promulgated when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session.
  • ordinance-making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament.
  • The constitution provides that ordinances are required to be approved by parliament within six weeks of the commencement of the next session of parliament. If they are not passed within this time frame, they cease to be in force.
  • Further, the constitution also states that there should not be a gap of more than six months between two sessions of parliament.
  • The President can also withdraw an ordinance at any time. However, his power of ordinance-making is not a discretionary power.
  • The constitution cannot be amended by issuing an ordinance.

Ordinances issued since the 1950s

In the 1950s, central ordinances were issued at an average of 7.1 per year. The number peaked in the 1990s at 19.6 per year and declined to 7.9 per year in the 2010s. The last couple of years has seen a spike, 16 in 2019, 15 in 2020, and four till now this year.

Cooper’s case (1970)

  • President can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.
  • In this case, the Supreme Court ruled that the President’s satisfaction can be questioned in a court on the ground of malafide.
  • Thus, the intent of proroguing the house should not be to bypass the parliamentary decision and thereby circumventing the authority of the Parliament.
  • Thus, the President’s satisfaction was made justiciable by the 44th constitutional amendment act of 1978.

Repromulgation of ordinances

  • In D.C. Wadhwa case Supreme court highlighted that between 1967– 1981 the Governor of Bihar promulgated 256 ordinances and all these were kept in force for periods ranging from one to fourteen years by repromulgation from time to time.
  • The court ruled that successive repromulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to the violation of the Constitution and the ordinance so promulgated is liable to be struck down.
  • It held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.
  • A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme.
  • Further, the court held that the strategy of repromulgation would be repugnant to the constitutional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of lawmaking.
  • However, despite the judgement repromulgation route was resorted to by the governments.
  • For example, in 2013 and 2014, the Securities Laws (Amendment) Ordinance was promulgated three times. Similarly, an ordinance to amend the Land Acquisition Act was issued in December 2014 and repromulgated twice – in April and May 2015.

2017 judgement

  • A seven-judge Constitution Bench declared this practice to be unconstitutional.
  • The judgment concluded that “Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
  • Ignoring this judgement, the central government has 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.

-Source: The Hindu

December 2023