An Ordinance is a form of legislation that can be promulgated by the President of India under Article 123 of the Constitution during circumstances when one or both Houses of Parliament are not in session. This law-making power is utilised in urgent matters that cannot wait for the Houses to convene. It should be noted that these ordinances cannot be issued by Parliament itself.
The ordinance, once promulgated, holds the force of law. However, it must subsequently be ratified by Parliament within six weeks of its reassembly. An ordinance can stay in effect for a maximum period of six months and six weeks from the date of its promulgation.
The Governor of a state also holds the power to issue ordinances under Article 213 of the Constitution of India when the state legislative assembly is not in session. The later date is taken into consideration if the two Houses start their sessions on different dates.
Process of Enactment and Withdrawal of an Ordinance
The decision to bring forth an ordinance lies with the government. The President acts based on the advice of the Council of Ministers. The President may return the Cabinet’s recommendation for reconsideration if deemed necessary. However, if it is sent back, with or without revisions, the President must promulgate it.
The President also has the power to withdraw an ordinance. Both Houses of Parliament can pass resolutions to disapprove of it, potentially leading to its lapse. If an Ordinance is rejected, it could suggest that the government has lost its majority. An Ordinance that falls outside the jurisdiction of the Parliament’s competence is considered void.
Repromulgation of an Ordinance
When an Ordinance lapses, the government can opt to re-promulgate it – but this is subject to limitations. A 2017 Supreme Court ruling deemed continuous re-promulgations without legislative considerations as unconstitutional and in violation of the legislature’s role. The court stated that the power to issue an Ordinance should be seen as an emergency measure and not a way to bypass the legislature.
An ordinance, akin to any other legislation, can be retrospective, meaning, it can come into effect from a backdate. It could also alter or repeal any act of Parliament or another Ordinance.
Advantages and Disadvantages of Ordinances
While Ordinances allow swift action on urgent matters, bypass parliamentary obstacles, and provide legal certainty in cases of a judicial gap, they also have their downsides. These include reducing parliamentary oversight, undermining the principle of separation of powers, creating legal uncertainty due to their temporary nature, and potential for misuse to avoid public scrutiny or debate.
Past Judicial Verdicts on Ordinances
Several past judicial verdicts have set precedents in how ordinances are viewed and treated in India. For instance, in the case of R.C. Cooper v. Union of India (1970), the Presidential satisfaction regarding the necessity of an ordinance was ruled as being open to judicial review. The verdict stressed that an ordinance holds equal constitutional limitations as an Act of Parliament and cannot overrule any fundamental rights or other constitutional provisions.
In the A.K. Roy v. Union of India (1982) case, legitimacy was given to the ordinance issuing process but with safeguards such as periodic review by an advisory board and communication of grounds of detention to the detenu.
D.C. Wadhwa v. State of Bihar (1987) challenged a series of ordinances issued by the Bihar Governor. The Supreme Court invalidated all such ordinances, deeming the re-promulgation of ordinances as unconstitutional and a subversion of the democratic legislative process.
Recent Development
Most recently, an Ordinance was promulgated by the Indian President that empowers the Lieutenant Governor of Delhi over services in the National Capital Territory (NCT). The Ordinance established a “National Capital Civil Service Authority” comprising the Chief Minister and two senior IAS officers, who can decide matters through majority voting. This has sparked criticism as it potentially allows for the elected Chief Minister’s views to be overruled.
Last Modified: February 20, 2024