Introduction

Originally, Ordinances were formulated as emergency provisions. However, the frequent use of ordinance in recent times has resulted in undermining the roles of the legislature.

Historical Background of Ordinances

• Ordinances were incorporated into the Constitution of India, 1950 (COI) by the Government of India Act, 1935.
• Section 42 and 43 of the Government of India Act, 1935 dealt with the ordinance making power of the Governor General which states that if circumstances exist which render it necessary for him to take immediate action, then only he can use this power.

Ordinance

• An Ordinance is a decree or law promulgated by a State or Central government when the legislature or parliament is not in session.
• The legislative power to issue ordinances is in the nature of an emergency power given to the executive only to meet an emergent situation.

Constitutional Provisions in Relation to Ordinances

• Article 123 of the COI authorizes the President to issue Ordinances during Parliament's break, while Article 213 empowers Governors to issue Ordinances when the legislature is not in session.

Article 123, COI

• This Article deals with the power of the President to promulgate ordinances during recess of Parliament. It states that -
  • (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require
  • (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance
    • (a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
    • (b) may be withdrawn at any time by the President.
    • Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause
  • (3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

Article 213, COI

• This Article deals with the power of the Governor to promulgate ordinances during recess of Legislature. It states that -
  • (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require:
  • Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if
    • (a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
    • (b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
    • (c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President
  • (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance
    • (a) shall be laid before the legislative Assembly of the State, or where there is a Legislative Council in the State, before both the House, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
    • (b) may be withdrawn at any time by the Governor.
    • Explanation: Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause
  • (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the legislature of the State assented to by the Governor, it shall be void.
  • Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the president and assented to by him.

Essential Elements of an Ordinance

• Ordinances may be promulgated only when both the houses of Parliament are not in session or when either of the two houses of Parliament is not in session.
• An Ordinance made when both the houses are in session is void.
• President can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.
  • In RC Cooper Case 1970, the Supreme Court held that the President’s decision to promulgate ordinance could be challenged on the grounds that immediate action was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
• An Ordinance can be issued only on those subjects on which the Parliament can make laws.
• If an Ordinance makes a law that Parliament is not competent to enact under the Constitution, it shall be considered void.
• An Ordinance shall have the same force and effect as an Act of Parliament.
• An Ordinance is valid for six weeks or 42 days from the date on which the next session starts.
• The Ordinance may lapse earlier if the President withdraws it or if both houses pass resolutions disapproving it.
• An Ordinance may also be withdrawn by the President at any time.
• An ordinance must be changed over into law within 42 days of the beginning of the Parliament session, or it will lapse. And once an ordinance lapses the law brought in the system ceases to operate and will not be treated as legal law anymore.

Repromulgation of an Ordinance

• If for some reason an Ordinance lapses, the only option for the government is to reissue or repromulgate it.
• Re-promulgation of an Ordinance means to effectively extend the life of an Ordinance. An Ordinance ceases to operate in 6 weeks except if it is converted into an Act by then.
• Re-promulgation sidesteps this limitation.

Case Laws

• In 2017 the Supreme Court examined Krishna Kumar Singh and Anr. v. State of Bihar (1998) and reiterated tha the Governor’s power to issue an Ordinance is in nature of an emergency power.
• In Dr DC Wadhwa and Ors. v. State of Bihar and Ors. (1986), the Supreme Court held that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature. The Court also said that if the government wishes for the Ordinance to continue in force beyond the six-week period, then it has to go before the legislature.

Conclusion

• Separation of power has been provided in the COI where enacting laws is the function of the legislature.
• The ordinance making power should be used only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.