Misuse of Ordinance Making Power

Synopsis: Ordinance Making Power by the executives has increasingly been misused. A vigilant Legislature and Court can reduce this menace.

Background

• Recently, the central government re-promulgated the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020
• This raises questions over the constitutional validity of issuing ordinances and that of re-promulgating ordinances, that too without their ratification by the Parliament.

About Ordinance making power of executives

• Article 123 and Article 213 empowers the central and state governments to make laws when Parliament or the State Legislature are not in session.
• The Constitution states that the ordinance will lapse at the end of six weeks from the time Parliament or the State Legislature next meets.
• Originally, it was conceived as an emergency provision and was expected to be used rarely.

Read also –Promulgation of “Tribunals Reforms Ordinance 2021

Misuse of the Ordinance making power

• One, the number of Ordinance issued by the centre has increased from an average of 7.1 per year in the 1950s to 15 in 2020.
• Two, States have also been using the ordinance route to enact laws. For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
• Three, further repromulgation of Ordinance by both centre and state is also increasing. For instance, The Indian Medical Council Amendment Ordinance by the centre and Kerala University of Digital Sciences, Innovation and Technology by Kerala are two recent examples.

What is the court’s view regarding promulgation and promulgation of the Ordinance?

• In the D.C. Wadhwa case, the court took up the issue of promulgation of 256 ordinances, of which 69 were repromulgated in Bihar between 1967 and 1981.
• The supreme court ruled that repromulgation of ordinances is against Constitutional morality and is an act of Colourable legislation. Because through ordinance making power the Executive encroaches into the law-making function of the Legislature.
• Further, the court said that there was no such practice of repromulgation by the centre.
• Later, the Centre too started to follow the lead of Bihar. For example, in 2013 and 2014, the Securities Laws Ordinance promulgated 3 times, Land Acquisition Act  twice.
• In 2017, the matter came up again in the Supreme Court. This time, the court gave a strong verdict. It declared that Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
• However, the Centre and states are not following this judgement. It is evident in the current case of the Commission for Air Quality Management.

The principle of Separation of Powers and Checks and balances empowers the legislatures and the courts to check the encroachment of the Executive. However, by allowing for repromulgation of ordinances, the Legislature and the court are abdicating their responsibility to the Constitution.

Source: The Hindu