Ordinances are temporary laws which have the same effect as an act of the Parliament. As per Article 123 of the Indian Constitution, the President is granted legislative powers through executive action via the instrument of Ordinances. This legislative power of the President is vested with him to deal with urgent matters requiring immediate action when parliament is not in session, on the advice of Council of Ministers and they are required to be approved by Parliament within six weeks of reassembling.
- An analysis shows that it was in early 1990s that largest number of ordinances were made which declined later. However, in the past few years there has been significant rise in the number of ordinances promulgated.
SC on ordinances:
- In RustomCavasjee Cooper v. Union of India (1970), Supreme court (SC) held that President’s decision could be challenged on the grounds that ‘immediate action’ was not required.
- DC Wadhwa v. State of Bihar(1987), it was argued thatlegislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature. SC deprecated the practice of re-promulgation of ordinances without placing the ordinances before the Legislature would amount to “constitutional fraud”.
- Recently, on constitutionality of seven successive re-promulgations of the Bihar Non-Government Sanskrit Schools (Taking Over of Managementand Control) Ordinance of 1989 SC widened the boundaries of judicial review and held that it could examine the ‘oblique motive’ behind the promulgation of ordinance.
Ordinance promulgation in itself don’t circumvent the legislature but its re-promulgation without any attempt to pass the bills or by keeping the Parliament session too short to deal with the ordinance circumvents the authority of legislature.
- It bypasses representative legislature, Eg: Recent Land acquisition bill, Enemy Property Bill, The National Food Security Ordinance of 2013.
- Ordinances are not discussed or put through Standing Committees in which important clauses may be discussed.
- Re-promulgation leads to continuous misuse of power and is a sign of weak coalition, for instance as seen during NarisimhaRao Govt.
The practice of re-promulgation which erodes the powers of legislature which now would be checked by the Judiciary through Judicial review with the Constitutional bench’s recent widening of powers to examine the motive behind passing of the Ordinances, a power not found in most of the democratic constitutions.Minimizing disruptions in parliament,paving way for constructive debates and a proper judicial review will ensure that route of ordinance is used only when needed.
