Context: Kerala Governor Arif Mohammed Khan took exception to the State government’s move to reissue ordinances instead of getting the executive orders ratified by the Assembly.
The government had sent Mr. Khan 11 ordinances for re-promulgation. They included the controversial Kerala Lok Ayukta, 1999, amendment ordinance, and the Kerala Cooperative Societies Act, 2022, amendment ordinance.
If we look into the UPSC syllabus:
Power of ordinance
In India, the central and state legislatures are responsible for law making, the central and state governments are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws. However, there are several overlaps in the functions and powers of the three institutions. For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation.
Ordinance making is one such provision which diffuses the line between legislature and executive. They enable the government to take immediate legislative action in desperate times. Article 123 of the Indian Constitution grants the President of India certain Law making powers i.e. to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law. Ordinances may relate to any subject that the parliament has the power to make law, and would be having the same limitations.
But executive (Both central and state) have often misused this power. Nothing epitomises the re-promulgation of the ordinances better than the famous “Bihar case”. Which was about the promulgation of 256 ordinances between 1967 and 1981 in Bihar. This included 11 ordinances that were kept alive for more than 10 years and famously dubbed as ordinance raj.
So instances like these clearly indicate the misuse of legislative powers by the executive which were meant to be used only rarely and under limited circumstances. So in this regard we will understand the following:
2. Why frequent resorting to Ordinance Route?
3. Issues
4. Important Cases related to Ordinance
Constitutional Provisions:
- Article 123 and Article 213 confers power to promulgate ordinance on the President and the Governor respectively.
- Under the Constitution, limitations exist with regard to the Ordinance making power of the executive:
- Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
- Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
- Parliamentary approval during session: 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.
Why frequent resorting to Ordinance Route?
- Reluctance to face the legislature on particular issues.
- Lack of majority in the Parliament.
- Repeated and wilful disruption by opposition parties.
Issues
- The executive’s power to issue ordinances, goes against the Philosophy of Separation of powers between the Legislature, Executive and Judiciary
- It bypasses the democratic requirements of argument and deliberation.
- Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred on the President and the Governors.
- It poses threat to the sovereignty of Parliament and the state legislatures which have been constituted as primary lawgivers under the Constitution. The Constitution has provided for Separation of Power where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance making power only as per the spirit of the Constitution and not to evade legislative scrutiny and debates
Important Cases related to Ordinance
- RC Cooper vs. Union of India, 1970: SC held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
- AK Roy vs. Union of India, 1982: SC argued that the President’s Ordinance making power is not beyond the scope of judicial review. Later in case of Venkata Reddy v. State of Andhra Pradesh (1985) Supreme court over ruled its own decision and held that the Satisfaction of the President cannot be called in question.
- DC Wadhwa vs. State of Bihar, 1987: SC said that the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power. It was examining a case where a state government repromulgated a total of 259 Ordinances and some of them for as long as 14 years.
- Krishna Kumar Singh vs. State of Bihar, 2017: Supreme Court held that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution. It makes mandatory for an ordinance to be tabled in the legislature for its approval.
Way forward
In Nagraj Judgment, SC has observed “The power to issue an ordinance is not an executive power but it’s the power of the executive to legislate on the grounds provided for in article 123”.
