“Article 123 of the Indian Constitution lays down the president’s power to promulgate ordinances.”[1] “As per article 213 of the Indian Constitution, even a governor can pass an ordinance provided that legislative assembly of the state is not in session and the ordinance does not require the prior assent of the president.”[2] “An ordinance by the president or by the governor needs to be laid down before both houses of parliament or before the legislative assembly respectively after its reassembly. The ordinance by president or governor will cease to exist six weeks after such reassembly or on the disapproval of the parliament or legislative assembly respectively or if the president or the governor withdraws such ordinance.”[3] On the occurrence of three eventualities, an ordinance shall cease to exist.

“Article 123 and 213 also state that a president or governor can pass ordinances only on subjects which the parliament or legislative assembly respectively have the authority to pass laws on.”[4] “The intention behind such law is that in cases where both houses of parliament are not in session and an immediate action in terms of passing a law needs to be taken, the president or the governor of the state can pass an ordinance which will have the same effect as that of the law passed by any parliament.”[5]

The case D.C. Wadhwa v. Union of India[6] gave plenty clarity about the executive’s power under Articles 123 and 213. “The issue here was that should repromulgations by the president or the governor be allowed.”[7] The court answered in negative. “The powers under Articles 123 and 213 have been provided for a specific reason and it has to be exercised only during emergency scenarios, for instance, when the legislature is not in session. Such a power cannot be used in a regular and casual manner. Executive is not a parallel law making body in the absence of legislature as if that was the case, it would hamper the democracy. In addition to that, this power may be used for political purposes and so, legitimizing such repromulgations can serve the political ends easily which is unfair for the democracy. Hence, the ordinance shall cease to exist after six weeks of reassembly and any repromulgation shall not be allowed. However, this case also carved out an exception where repromulgation can be done. If the executive believes that the legislature is overburdened with other issues and does not have time to pass a bill on such issue, and an ordinance on such an issue is the need of an hour, the executive may repromulgate.”[8]

The case Krishna Kumar Singh v. State of Bihar[9] further clarified the stand of executive power in India. “It reiterates that repromulgations by the executive circumvents the legislative power however, it also lays down situations when such ordinances would survive. If the effect of ordinance cannot be reversed after it has ceased to exist and undoing it would be against public interest and constitutional necessity, then the courts may provide such a relief that does not violate the rights and gives continuance to the effect of ordinance.”[10] Hence, in cases where the public interest and constitutionality is at stake, the effect of ordinances may survive despite its disapproval. The whole debate about the powers of executive is present because conferring law making power on the executive questions the parliamentary supremacy in the country and might lead to an ‘ordinance raaz’[11]. However, such a law would not be undemocratic as the rights under ordinance can be created only after they have been approved by the parliament or by the legislative assembly.

“Additionally, the only difference between an ordinance passed by the executive and an act passed by the legislature is of the duration for which these laws exist.”[12] The duration of an ordinance is shorter and may cease to exist soon however, an act is usually passed for a longer duration. “The ordinance has all attributes and elements an act passed by a parliament. Such an ordinance also has the power to alter, amend or override any existing law passed by the parliament but only for the period when such ordinance is in effect.”[13] “This power has been construed as executive’s power to legislate.”[14]

The cases Krishna Kumar Singh and D.C. Wadhwa dealt with repromulgations by executive to support their political purposes. “One such article also supports the view that ordinances are passed by the executive very frequently despite the fact that they have to be exercised in extra ordinary circumstances. Hence, there has been a regular and normal use of this executive power to serve political purposes.”[15] While repromulgation has been allowed in some circumstances as has been discussed above, this power of the executive is to be employed not as replacement of legislature but it has to be used only when the circumstances are so urgent that waiting for parliamentary session could have an adverse impact. Repromulgation can be exercised only when there has been a change in underlying circumstances which make such a repromulgation important. In most cases discussed above, repromulgation has not been such a necessity. This also means that there is a need to keep a check on not just the legislative power but also on executive power exercised by the president or the governor. “Therefore, practically, such ordinances have no boundaries or actual legal limits, they are may be exercised out of political needs in the name of emergency.”[16]

[1] The Constitution of India, article 123.

[2] The Constitution of India, article 213.

[3] The Constitution of India, articles 123 and 213.

[4] Ibid.

[5] A.K. Roy & Ors. v. Union of India 1982 AIR 710, 1982 SCR (2) 272.

[6] 1987 AIR 579, 1987 SCR (1) 798.

[7] D.C. Wadhwa & Ors. v. Union of India & Ors. 1987 AIR 579, 1987 SCR (1) 798.

[8] Ibid.

[9] Civil Appeal Nos. 5875 of 1994.

[10] Krishna Kumar Singh & Anr. v. State of Bihar & Ors. Civil Appeal Nos. 5875 of 1994.

[11] D.C. Wadhwa & Ors. v. Union of India & Ors. 1987 AIR 579, 1987 SCR (1) 798.

[12] R.K. Garg & Ors. v. Union of India & Ors. 1982 133 ITR 239 SC, (1981) 4 SCC 675, 1981 1 SCR 947, 1982 (14) UJ 12 SC.

[13] Ibid.

[14] T Venkata Reddy v. State of Andhra Pradesh 1985 AIR 724, 1985 SCR (3) 509.

[15] Shubhankar Dam in Presidential Legislation in India: The Law and Practice of Ordinances (Comparative Constitutional Law and Policy),2013.

[16] Ibid.

Aishwarya Says:

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