Ordinances in India
The term "ordinance" is defined by the Oxford dictionary as an authoritative order. Ordinance is a decree or law promulgated by a state or national government without the consent of the legislature. It includes examples such as collecting revenue through new taxes or harnessing resources during an emergency or threat. For an ordinance to be enforced effectively, it must not be in conflict with any higher law such as state or national law or constitutional provisions.
Article 123 of the Constitution of India grants the President certain law-making powers to promulgate ordinances when either of the two Houses of Parliament is not in session. Hence, it is not possible for the ordinances to be issuedin the Parliament.The fundamental reason for bestowing the executive with the power to issue ordinance according toPanditH NKunzru (involved in framing the Indian Constitution), was “to deal with situations where an emergency in the country necessitated urgent action.”
An ordinance may be concerned with any subject that the Parliament has the power to legislate on and also has the same limitations as the Parliament to legislate according to the distribution of powers between the Union, State and Concurrent Lists. There are three limitations with regard to the ordinance making power of the executive. They are:
i. The President can only promulgate an ordinance when either of the two Houses of Parliament is not in session.
ii. The President cannot promulgate an ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
iii. Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the ordinance are passed by both the Houses.
An ordinance has to be converted into legislation within 42 days of commencement of the Parliament session, or else it will lapse. An ordinance can be re-promulgated only thrice. The governor of a state can also issue ordinances under Article 213 of the Constitution of India, when the state legislative assembly is not in session. There have been various important discussions on the ordinance making power of the President and Governor. Significant questions have beenaskedon the judicial review of the ordinance making powers of the executive; the necessity for ‘immediate action’ while promulgating an ordinance and the granting of ordinance making powers to the executive, given the principle of separation of powers. The separation of power is very crucial in countries such as US and Britain. The US or British governments do not have the power to issue ordinances.
The Government of India Act, 1935, allows the issuing of ordinances with proper safeguards. However, there has been serious misuse of the ‘emergency’ power by different central governments. In India, under the present NDA government, 9 ordinances have been promulgated during 2014-2015. They are as follows:
1. The Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015
2. The Motor Vehicles (Amendment) Ordinance, 2015
3. The Citizenship (Amendment) Ordinance, 2015
4. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014
5. The Insurance Laws (Amendment) Ordinance, 2014
6. The Coal Mines (Special Provisions) Second Ordinance, 2014
7. The Textile Undertakings (Nationalisation) Laws (Amendment and Validation) Ordinance, 2014
8. The Coal Mines (Special Provisions) Ordinance, 2014
9. Andhra Pradesh Reorganisation (Amendment) Ordinance 2014
The President of India, Pranab Mukherjee has expressed his strong opinion on promulgating ordinances in this manner,which has drawn widespread attention to the topic. Constitutional analysts, the media and the opposition are up in arms against the government for promulgating ordinances on insurance, land acquisition, etc. Their argument is that an ordinance is an undemocratic path to lawmaking, whichis a function of the legislature. Therefore, any executive attempt at lawmaking is unacceptable. A few of these bills are pending before the Parliament or parliamentary committees and the government has gone ahead with promulgation of the ordinances. However, this has occurred in the past too in 1950, when an ordinance was issued even though the Sugar Crisis Enquiring Authority Bill was pending in the Parliament.
An ordinance is described as a legislative power of the President; however, it is issued on the advice of the council of ministers and is hence considered to be a law made by the executive. The president has issued eight ordinances after the stalling of parliamentary sessions. Many of the ordinances are concerned with bills pending before the parliament. A few bills pertaining to the economic liberalization policy of the government could not be passed during the last session of the Rajya Sabha. So, the government resorted to the ordinance path to facilitate good governance. Economic reforms, which have been unduly held up can affect the economic growth. The ordinances have helped to pass laws that could not be passed by the Parliament. The opposition which has disrupted the parliamentary sessions and blocked the passage of bills cannot complain that issuing ordinances is undemocratic.
However, when ordinances are frequently issued and re-issued, it violates the spirit of the Constitution and result in an ‘ordinance raj’, which is not desirable. In D.C. Wadhwa and others vs State of Bihar and others, 1987, the Supreme Court strongly condemned this practice and called it as a constitutional fraud. In 1970, in its judgment in Rustom Cavasjee Cooper vs Union of India, the apex court has established that judicial intervention is absolutely necessary. So, when the executive abuses its power to issue ordinances, the judiciary could intervene.
Based on my understanding of the subject, I feel that issuing ordinances in times other than emergency is not a good trend. The opposition has to display maturity and should not disrupt the proceedings of the Parliament. Parliamentary time should be well-utilized to discuss and debate matters of importance and decide upon the fate of the bills.
4.http://www.outlookindia.com/gsearch.aspx?cx=partner-pub-8484176841147392:5546753431&cof=FORID:10&ie=ISO-8859-1&q=Ordinance by the present government&sa.x=8&sa.y=12
Bangalore Institute of Legal Studies