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Power to Promulgate, Repromulgate Ordinances

Context:

The central government recently promulgated an Ordinance to undo a unanimous verdict of a 5-judge Constitution Bench of the Supreme Court.

  • The SC verdict gave the Delhi government control over the transfer and posting of officials in the National Capital Territory (NCT), except with regard to public order, police, and land.

Relevance

GS II: Polity and Governance

Dimensions of the Article:

  1. Power to Promulgate Ordinance
  2. Repromulgation of Ordinance
  3. SC Verdicts on Promulgation/Repromulgation of Ordinances
  4. Regarding the ordinance related to power over services in the National Capital Territory (NCT)

Power to Promulgate Ordinance:

Article 123 of the Indian Constitution:

  • Empowers the President to promulgate Ordinances during Parliament recess.

Article 213 of the Indian Constitution

  • It deals with the broadly analogous powers of the Governor to promulgate an Ordinance when the state legislature is not in session.

Conditions for Promulgation:

  • President can promulgate Ordinances if both Houses of Parliament are not in session.
  • President must be satisfied that immediate action is necessary due to existing circumstances.

Government’s Role:

  • President acts on advice of Council of Ministers (Article 74).
  • Government decides to bring the Ordinance.

Force and Effect of Ordinance:

  • An Ordinance holds the same force and effect as an Act of Parliament.
  • Government must bring the Ordinance before Parliament for ratification.

Lapsing of Ordinance:

  • If government fails to bring the Ordinance before Parliament, it lapses after 6 weeks from Parliament’s reassembly.
  • Ordinance may also lapse earlier if the President withdraws it or if both Houses pass resolutions disapproving it.
  • Rejection implies the government has lost majority.

Repromulgation of Ordinance:

  • The power to promulgate ordinances is provided for addressing urgent requirements since lawmaking is a legislative function.
  • To prevent an ordinance from lapsing (which occurs after 6 weeks from the reassembly of both Houses of Parliament), it needs to be converted into an Act through parliamentary ratification within that timeframe.
  • Repromulgation of an ordinance, however, extends its life and allows the executive branch to retain legislative power.

SC Verdicts on Promulgation/Repromulgation of Ordinances:

RC Cooper Case (1970):

  • In this case, it was held that if an ordinance is promulgated without an immediate requirement and solely to bypass debate and discussion in the legislature, the President’s decision to promulgate the ordinance can be challenged.

D C Wadhwa v. State of Bihar (1986):

  • The court ruled that it would be considered a colorable exercise of power if the government ignores the legislature and repromulgates an ordinance repeatedly, while continuing to regulate the rights and freedoms of citizens through executive-made ordinances.

Krishna Kumar Singh v. State of Bihar (2017):

  • In this case, a 7-judge bench of the court reiterated that legislation should normally be carried out by the legislature.
  • The power of the Governor to issue an ordinance is considered an emergency power.
  • Repeated repromulgations of an ordinance without bringing it to the legislature would be seen as usurping the function of the legislature and would be deemed unconstitutional.

Regarding the ordinance related to power over services in the National Capital Territory (NCT):

  • The ordinance conferred power over services to the Lieutenant Governor of Delhi, who is appointed by the central government.
  • It established a National Capital Civil Service Authority, consisting of the Chief Minister and two senior IAS officials.
  • The authority would make decisions based on the majority of votes from the members present and voting.
  • This setup created a situation where the elected Chief Minister’s views could potentially be overruled by the authority.

-Source: Indian Express


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