In News:Kerala Governor objects to repromulgation of ordinances.
Governor 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 11 ordinances for repromulgation.
Governor says SC had deemed it a subversion of legislative process.
The Supreme Court had ruled (in 2017) that re-promulgation of ordinances tantamount to subversion of the democratic legislative process.
Ordinance
An ordinance is any law promulgated by the President when the Indian parliament is not in session.
These ordinances have the same legal force and effect as an Act of Parliament, but they are only temporary in nature.
Ordinance Making Power of President
Article 123 grants the President certain law-making powers, including the authority to issue ordinances during Parliament’s recess and hence it is not possible to enact laws in the Parliament.
Following limitations exist with regards to the president’s ordinance making powers:
When one or either of the two Houses of Parliament is not in session, the President may promulgate an Ordinance.
The President cannot issue an Ordinance unless he is satisfied that the situation necessitates ‘immediate action.’
The President’s authority to issue ordinances is justiciable if intentions are proved mala fide.
Ordinance Making Power of Governor
Article 213 states that the Governor of the state may issue ordinances when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
Properties of the Ordinance
An ordinance can be retrospective, which means that it can be enacted prior to its approval.
An ordinance passed while Parliament is in session is deemed null and void.
To stay a law, the Ordinance must be approved by Parliament within six weeks of its reassembly. Its existence is terminated if the parliament does not act within six weeks of its reassembly.
Acts, laws, and events that occurred as a result of the ordinance remain in effect until it expires.
Ordinance promulgation cannot be regarded as a substitute for the President’s legislative authority.
Ordinances can only be passed on subjects where the Indian Parliament has the authority to pass laws.
Ordinances cannot be used to revoke the fundamental rights of the citizens guaranteed by the Indian Constitution.
The ordinance would also be declared null and void if both houses passed a resolution opposing it.
Misuse of the Ordinance making power
Deliberate bypassing of the legislature:
At times there are instances that legislature is being deliberately bypassed to avoid debate and deliberations on contentious legislative proposals.
This is against the ethos and spirit of democracy.
Repromulgation of ordinances:
As observed by the Supreme Court, re-promulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, especially when the government persistently avoids placing the ordinances before the legislature.
Undermining the Doctrine of Separation of Powers:
In the Kesavananda Bharati vs. State of Kerala case 1973, the Supreme Court listed the separation of powers as a “basic feature” of the Constitution.
The repromulgation undermines the separation of powers, as it effectively allows the executive to make permanent legislation without legislative input or approval.
The satisfaction of President:
Ordinance can be promulgated only when the President is satisfied that circumstances exist for the same thus providing the scope of misuse of the power.
Ignoring Supreme Court’s Judgements:
SC judgments
It was argued in DC Wadhwa vs. the State of Bihar (1987) 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 of the legislature.
Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.
Even after tough judgments on the use of ordinances, both the Centre and state governments have ignored the Supreme Court’s observations.
For example, in 2013 and 2014, the Securities Laws (Amendment) Ordinance was promulgated three times.
Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.
