Parliament – Sessions, Procedures, Motions, Committees etc

Issues with ordinance in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 123, Article 213 of the Indian Constitution

Mains level : Paper 2- Issues with the repromulgation of ordinances

Repromulgation of ordinances raises several questions and it also goes against the Supreme Court judgement. The article explains the issues involved.

Ordinance route and issues with it

  • The central government has repromulgated the ordinance that establishes a commission for air quality management in the National Capital Region.
  • This raises questions about the practice of issuing ordinances to make law, and that of re-issuing ordinances without getting them ratified by Parliament.
  • Law making is a legislative function, this power is provided for urgent requirements, and the law thus made has an automatic expiry at the end of six weeks from the time Legislature next meets.

How frequent is the use of ordinance route

  • In the 1950s, central ordinances were issued at an average of 7.1 per year.
  • The number peaked in the 1990s at 19.6 per year, and declined to 7.9 per year in the 2010s. 
  • The last couple of years has seen a spike, 16 in 2019, 15 in 2020, and four till now this year.
  • States have also been using the ordinance route to enact laws.
  • For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
  • Kerala has also repromulgated ordinances.

What the Supreme Court said

  • The issue was brought up in the Supreme Court through a writ petition by D.C. Wadhwa.
  • He found out that Bihar had issued 256 ordinances between 1967 and 1981, of which 69 were repromulgated several times, including 11 which were kept alive for more than 10 years.
  • A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme.
  • The judgment did not stop the practice.
  • Instead, the Centre also started to follow the lead of Bihar.
  • For example, in 2013 and 2014, the Securities Laws (Amendment) ordinance was promulgated three times.
  • Similarly, an ordinance to amend the Land Acquisition Act was issued in December 2014, and repromulgated twice – in April and May 2015.
  • The matter came up again in the Supreme Court in  2017, a seven-judge Constitution Bench declared this practice to be unconstitutional and declared it to be a fraud on the Constitution.
  • Even this judgment has been ignored.
  • The Indian Medical Council Amendment Ordinance was issued in September 2018, and reissued in January 2019.

Way forward

  • Ordinances are to tackle exigencies when the legislature is not in session, and expire at the end of six weeks of the next meeting of the legislature.
  • This time period is given for the legislature to decide whether such a law is warranted.
  • Repromulgation is not permitted as that would be a usurpation of legislative power by the executive.
  • As governments, both at the Centre and States, are violating this principle, the legislatures and the courts should check the practice.
  • By not checking this practice, the other two organs are also abdicating their responsibility to the Constitution.

Consider the question “What are the issues with the repormulgation of ordinances by the government? Suggest the measures to deal with the issue.”

Conclusion

As the Supreme Court said, repromulgation would most certainly be a colourable exercise of power for the Government and it needs to be avoided.

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