Govt’s power to promulgate, repromulgate Ordinances — why and how

Source: The post is based on the article “Govt’s power to promulgate, repromulgate Ordinances — why and how” published in The Hindu on 24th May 2023

What is the News?

The President of India has promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023.

What is Ordinance?

Article 123 of the Constitution gives the President of India powers to promulgate ordinances when Parliament is not in session and an immediate action is required.

– Note: Article 213 deals with the broadly analogous powers of the Governor to promulgate/ withdraw an Ordinance when the state legislature is not in session.

Article 123 reads “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 Ordinances”.

An Ordinance shall have the same force and effect as an Act of Parliament. But the government is required to bring an Ordinance before Parliament for ratification — and failure to do so will lead to its lapsing at the expiration of six weeks from the reassembly of Parliament.

The Ordinance may lapse earlier if the President withdraws it — or if both Houses pass resolutions disapproving it.

Also, if an Ordinance makes a law that Parliament is not competent to enact under the Constitution, it shall be considered void.

Since the President acts on the advice of the Council of Ministers, it is in effect the government that decides to bring the Ordinance. 

The President may return the recommendation of the Cabinet once if she feels it warrants reconsideration; if it is sent back (with or without reconsideration), she has to promulgate it.

What are the Supreme Court judgments on ordinances?

RC Cooper Case 1970: The Supreme Court held that the President’s decision to promulgate an ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.

Dr D C Wadhwa and Ors v. State of Bihar and Ors (1986): The Supreme Court held that it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and repromulgate the Ordinance while continuing to regulate the life and liberty of its citizens through Executive-made Ordinances.

Krishna Kumar Singh and Another v. State of Bihar: In 2017, the Supreme Court examined a case where the state of Bihar re-promulgated an Ordinance several times without placing it before the legislature.

– The court reiterated that legislation should normally be done by the legislature, and the Governor’s power to issue an Ordinance is in the nature of emergency power.

– The court clarified that there might be circumstances permitting the re-promulgation of an Ordinance — however, it said, repeated re-promulgations without bringing the Ordinance to the legislature would usurp the legislature’s function, and would be unconstitutional.