This article has been written by Bijendra Shandilya, a student studying BBA-LLB from Indian institute of management, Rohtak . The author is a 1st year law student.
Let’s understand ordinance, A legislation passed by the State or Central Government without the consent of the Legislature is referred to as a “Ordinance.” Such an ordinance must not contradict with any higher law pertaining to state or Central law or constitutional primacy in order to function successfully.
The goal of the approach of passing ordinances is to give the executive the ability to handle any unforeseen situation that may arise in the country when the legislature is not in session.
The President and the Governor have the authority to enact laws that can be utilised to address specific emergencies, but they also have the ability to do so even when the legislature is not in session.
Although these acts are probably just temporary in nature, they have the same force and effect as a legislative act.
The constitution allows under Article 123 the government of the day to use the ordinance route when the parliament is not in session and emergency situation requires that government has to respond immediately by making changes to a piece of legislation or bring in fresh legislation. Once the union cabinet clears it and the president gives his assent, the ordinance becomes law.
However, the central government after it is notified by the president should table it before the parliament within the 1st six weeks of its sitting. The ordinance should be brought out in the form of a bill, where the parliament after due deliberations can choose to approve it or reject it completely or pass it with any modifications. For any reason, if this due process is not followed the ordinance lapses after the specify time frame. Alternatively the president can withdraw the ordinance.
Recent example of ordinance brought by central government. The central farm laws which met with wide area protests were initially brought through the ordinance route.
- The farmers produce trade commerce ( promotion and facilitation ) ordinance.
- The farmers ( empowerment and protection ) agreement on price assurance and farm services ordinance.
- The essential commodities act were brought in 2020 all three ordinances were replaced by laws in parliament during its monsoon session.
Let’s see historical events of ordinance provisions, The Indian Councils Act of 1861, Section 23 of which granted the Governor General the right to make orders accompanied by ordinances, confers the authority to promulgate the Ordinance. According to the act, the ability to issue ordinances is subject to two requirements: there must be an emergency and the ordinance must be in effect for no more than six months. Both the Government of India Act of 1909 and the Government of India Act of 1935 preserved the same authority to enact an ordinance. According to Sections 42 and 43 of the Government of India Act, 1935, the Governor General may only promulgate ordinances during a legislative break, on the advice of ministers, and in accordance with his judgement. However, in certain limited circumstances, he may override the ministers’ recommendations, but he must first consult them.
Now let’s understand in detail of ordinance making powers of the executive :-
This article explores the executive’s authority to enact laws in India in light of the union cabinet’s decision to issue an ordinance to uphold the Representation of People Act, 1951’s provisions. The law permits lawmakers (including Members of Parliament and Legislative Assemblies) to continue serving in office even after being convicted as long as they (a) file an appeal against the conviction before a court within 90 days and (b) get their appeal stayed by the court. The Ordinance will, however, not become effective until it has the President’s approval.
Separation of powers between the executive, legislature, judiciary – In India, laws are created by the national and state legislatures, implemented by the national and state governments, and interpreted by the judiciary (the Supreme Court, High Courts, and lower courts). The roles and authority of the three institutions do, however, frequently overlap. For instance, the legislature may assign part of its duties to the executive branch through subordinate legislation, and the President is granted certain legislative and judicial powers.
Ordinance making powers of the president – When one of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament, Article 123 of the Constitution gives the President the authority to publish Ordinances. Any topic that the Parliament has the authority to legislate may be the subject of an Ordinance. In contrast, because to the division of authority among the Union, State, and Concurrent Lists, it is subject to the same legislative restraints as the Parliament.
Thus, the following limitations exist with regard to the ordinance making power of the executive:-
Legislature is not in session :- Only when neither of the two Houses of Parliament is in session is the President permitted to proclaim an Ordinance.
Immediate action is required :- If the President is not convinced that “urgent action” is necessary under the circumstances, he cannot promulgate an ordinance.
Parliamentary approval during session :- Ordinances must be passed by Parliament within six weeks of the legislature’s reconvening in order to remain in effect. Additionally, they won’t function if both Houses vote resolutions opposing the Ordinance.
Look a cursory glance of ordinance making power of president and governor
While Parliament is in recess, the President of India is authorised under Article 123 to proclaim ordinances, and Governors are authorised by Article 213 to do the same when the legislature is not in session. For the Governors and the President, who issue ordinances for immediate action but must present the ordinances to the legislature when the central or state legislature reconvenes, the power to make ordinances is the same at both levels. Only when the President or Governor is confident that the circumstances in a given territory call for quick action, should he or she frame an ordinance. The maximum life of an Ordinance may be six months and six weeks because six months is the maximum time between two sessions of Parliament. Such an Ordinance shall expire six weeks following the reassembly of Parliament or a State Assembly. Only when neither of the two Houses of Parliament or the state legislature is in session or when neither of the two Houses of Parliament or the state legislature is in session [may the President or Governor] issue an ordinance. We can see from this that the President’s or Governor’s ability to pass laws through ordinances is not a separate legislative authority. Ordinances are subject to the same restrictions on lawmaking as laws passed by the legislature or by parliament, and they can only be issued on subjects that fall under their purview.
The President or Governor may also repeal an Ordinance at any time, but he or she may only do so on the advice of the Council of Ministers presided over by the prime minister in the parliament or the Council of Ministers presided over by the chief minister in the assembly.
Governor of the a state cannot make an ordinance without the reference of the president in the following cases – Similar elements in a bill require the President’s prior permission before the bill may be introduced in the Assembly.
Which Bills contain comparable provisions, and where the Governor has already thought about holding the Bills for the President’s consideration.
Which bills have the same provisions, and if the President’s assent is necessary for those clauses.
Any Act or Ordinance currently in effect may be amended or repealed by an Ordinance that the President or Governor promulgates in a retrospective manner, meaning it may date from a previous time.
An Ordinance issued by the President or Governor may not be used to restrict fundamental freedoms, amend the Constitution, or change the foundation of the Constitution.
The President’s authority to enact ordinances has nothing to do with national emergence and is used even when there isn’t a war, outside attack, or armed uprising. According to the Constitution, the ability to enact ordinances is intended to give the government the flexibility to address an emergency situation as it arises. when the Assembly or Parliament is not in session.
Judicial opinion on the ordinance making power:-
In accordance with the Supreme Court’s ruling that the President’s satisfaction is justifiable on the basis of malafide, the 44th Constitutional Amendment Act of 1978 repealed the provision in the 38th Constitutional Amendment Act of 1975 that put the President’s satisfaction regarding the Ordinance Making Power beyond judicial review.
According to the Supreme Court’s decision in the RC Cooper v. Union of India (1970) case, the President’s decision on an ordinance can be contested if it does not require immediate action or if it was approved primarily to avoid legislative discussion and debate.
The Supreme Court declared in the D.C. Wadhwa case (1987) that it is unlawful to promulgate successive ordinances with the same wording without making any attempt to adopt the bills in the Parliament or Assembly, and that such ordinances must be disregarded.
In conclusion of article, based on my understanding of the subject Ordinance-making is typically a difficult matter because it aims to upset the balance between executive and legislative authorities by introducing the element of discretion on the one hand and undermining the rule of law on the other. In actuality, the satisfaction of the President is the satisfaction of the Council of Ministers. Accordingly, the executive should show moderation, use the power to enact ordinances only in unforeseen or urgent circumstances, and not bypass legislative deliberation and debate.
I feel that issuing ordinances in times other than emergency is not a good trend. Opposition has to show maturity and should not disrupt the proceedings of the parliament. Parliamentary time should be well utilized to discuss and debate.
REFERENCES
https://prsindia.org/theprsblog/ordinance-making-powers-of-the-executive-in-india
https://indiankanoon.org/doc/1090693/
https://www.geeksforgeeks.org/ordinance-making-power-of-president-and-governor/
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