Understanding The Ordinance-Making Power In The Indian Constitution

The term ordinance in the Indian Constitution refers to the power of the President and Governor to issue authoritative orders or decrees, also known as laws, without the consent of the legislature. This power is intended to address situations where immediate action is required, such as emergencies or urgent matters, and when the legislature is not in session. The President's ordinance-making power is outlined in Article 123 of the Constitution, while the Governor's similar power is granted by Article 213. These ordinances have the same force as an Act of Parliament but are temporary, lasting a maximum of six weeks after the legislature reassembles or six months in total. They can be used to introduce legislative changes, but they must not conflict with any higher laws or the Fundamental Rights of the Indian Constitution. The frequent use of ordinances, however, has been criticised as violating the spirit of the Constitution and leading to an ordinance raj.

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Ordinance-making powers of the President

Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet. They are enacted when either of the two Houses of Parliament is not in session. They enable the Indian government to take immediate legislative action. Ordinances have the same effect as an Act of Parliament but are in the nature of temporary laws. They cannot be used to amend the Constitution or take away any rights guaranteed by the Fundamental Rights of the Indian Constitution.

Article 123 of the Indian Constitution grants the President certain law-making powers to promulgate ordinances during the recess of Parliament. The President can only issue an ordinance when deemed necessary to take immediate action. The ordinance must be approved by Parliament within six weeks of reassembling or it will lapse. The maximum life of an ordinance is six months and six weeks.

The ordinance-making power of the President is intended as a tool for efficiency and necessity. It allows the President to respond promptly to unforeseen situations or urgent matters without waiting for the regular legislative process. However, it also walks a tightrope between pragmatic governance and potential overreach. There have been debates surrounding the President's ordinance-making power, including the necessity for 'immediate action' and the granting of such powers to the executive, given the principle of separation of powers.

The ordinance-making power of the President has been used on several occasions. For example, the President has issued ordinances on insurance, land acquisition, and economic liberalization. In one instance, the President issued the Banking Companies (Acquisition of Undertakings) Ordinance, 1969, which sought to nationalise 14 of India's largest commercial banks. The Supreme Court held that the President's decision could be challenged on the grounds that 'immediate action' was not required and that the ordinance was passed primarily to bypass debate and discussion in the legislature.

Ordinance-making powers of the Governor

Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet. They are issued when one of the houses of Parliament is not in session. Ordinances have the same effect as an Act of Parliament and enable the Indian government to take immediate legislative action.

The ordinance-making power of the President and Governor is one of the important legislative powers vested in the executives by the Indian Constitution. This power refers to the ability of the executives to pass laws on urgent or unforeseen matters. Despite India's separation of powers, there are instances where the powers of the Legislature, Executive, and Judiciary overlap, and the promulgation of ordinances is one such power.

Article 213 of the Indian Constitution empowers the Governor of a State to issue ordinances when the State Legislative Assembly is not in session. In states with bicameral legislatures, the Governor can promulgate an ordinance when either of the two Houses is not in session or when both are not in session. The Governor's power to issue ordinances is in the nature of emergency power, and it is subject to certain conditions and limitations.

The ordinance issued by the Governor must be approved by the respective state legislature within a specified time frame, typically within six weeks of its reassembly, to continue as a law. If the state legislature does not approve the ordinance within the given time, the ordinance ceases to exist. Additionally, ordinances cannot take away any rights of citizens guaranteed by the Fundamental Rights of the Indian Constitution.

The ordinance-making power of the Governor is similar to that of the President. However, it is important to note that the President's power to promulgate or withdraw an ordinance is dependent on the advice of the Union Council of Ministers.

Limitations of ordinance-making powers

The ordinance-making power is an important legislative power vested in the President and Governor by the Indian Constitution. While this power is intended as a tool for efficiency and necessity, it can potentially be misused and overreached. Here are some key limitations to the ordinance-making powers of the President and Governor in India:

Separation of Powers

The Indian Constitution follows the Trias Politica model, which advocates for the separation of powers between the Legislature, Executive, and Judiciary. The law-making power lies with the Legislature, and by allowing the Executive to enter this domain, the ordinance-making power violates this principle. This was seen in the case of RC Cooper vs Union of India (1970), where the Supreme Court held that the President's decision could be challenged as ''immediate action' was not required, and the ordinance was passed to bypass debate and discussion in the legislature.

Undermining Democratic Principles

At times, the Executive may take the ordinance route to avoid debate and deliberations in the legislature, especially on contentious legislative proposals. This undermines democratic principles and was seen as a "fraud on constitutional power" by the Supreme Court in the Krishna Kumar Singh and Another v. State of Bihar case in 2017.

Misuse and Re-promulgation

The misuse of ordinance-making power is a serious issue in India, with a drastic increase in the number of ordinances issued by the President since the 1950s. States have also relied heavily on ordinances to pass laws. The Supreme Court, in the D.C. Wadhwa Case, observed that during 1967-1998, some ordinances in Bihar were kept in force for 14 years by successive re-promulgation without any effort to table the corresponding bill in the Legislature. The Court reiterated that repeated re-promulgations without bringing the ordinance to the legislature would be unconstitutional.

Parliamentary Approval

Ordinances issued by the President or Governor must be approved by Parliament or the State Legislature within six weeks of reassembling. If not approved, they shall cease to operate. Additionally, if resolutions disapproving of the ordinance are passed by both Houses, the ordinance will cease to operate.

Immediate Action

The President or Governor can only promulgate an ordinance when they are satisfied that circumstances exist that require taking 'immediate action'. This necessity for immediate action has been a subject of debate and judicial review, as seen in the RC Cooper vs Union of India case.

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Ordinances and the Constitution

Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet. They are temporary in nature and have the same effect as an Act of Parliament. Ordinances can only be issued when either of the two Houses of Parliament is not in session, and they enable the Indian government to take immediate legislative action. The President cannot promulgate an ordinance unless they are satisfied that there are circumstances that require taking 'immediate action'. The ordinance-making power of the President is derived from Article 123 of the Indian Constitution, which grants the President certain law-making powers during the recess of Parliament.

The maximum validity of an ordinance is six weeks from the reassembly of Parliament, and it must be approved by Parliament within this time frame or it shall cease to operate. If disapproving resolutions are passed by both Houses, the ordinance will also stand void. Ordinances cannot take away any rights of citizens guaranteed by the Fundamental Rights of the Indian Constitution, and they cannot be used to amend the Constitution. The ordinance-making power of the President is intended as a tool for efficiency and necessity, but it must be balanced with pragmatic governance to avoid potential overreach.

The Governor of a state also has the power to issue ordinances under Article 213 of the Indian Constitution when the state legislative assembly is not in session. This power is similar to that of the President. In the past, there have been concerns about the frequent use of ordinances and their re-promulgation, which some argue violates the spirit of the Constitution and results in an 'ordinance raj'.

From 1950 to 2014, a total of 679 ordinances were issued, with the highest number in a single year being 34 in 1993. In recent years, the average number of ordinances issued per year has decreased, with 6 being the average for the last 10 years.

Examples of ordinances

In the Indian Constitution, an ordinance is defined as an authoritative order or a decree that is promulgated by the President of India on the recommendation of the Union Cabinet. They are temporary laws that can be issued only when either of the two Houses of Parliament is not in session and have the same effect as an Act of Parliament.

Ordinances enable the Indian government to take immediate legislative action in situations where an emergency in the country necessitates urgent action. For instance, ordinances can be used to collect revenue through new taxes or harness resources during an emergency or threat. However, ordinances cannot take away any rights of citizens that are guaranteed by the Fundamental Rights of the Indian Constitution.

• The Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015: This ordinance was promulgated to make amendments to the laws governing the development and regulation of mines and minerals in India.
• The Motor Vehicles (Amendment) Ordinance, 2015: This ordinance was issued to bring about changes to the motor vehicle laws in the country.
• The Citizenship (Amendment) Ordinance, 2015: This ordinance pertained to amendments related to citizenship laws.
• The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014: This ordinance was promulgated to ensure fair compensation and transparency in land acquisition processes, as well as to address rehabilitation and resettlement issues.
• The Insurance Laws (Amendment) Ordinance, 2014: The Insurance Laws Ordinance was brought about to amend existing insurance laws in the country.
• The Coal Mines (Special Provisions) Second Ordinance, 2014: This ordinance, promulgated twice, dealt with making special provisions for coal mines.
• The Textile Undertakings (Nationalisation) Laws (Amendment and Validation) Ordinance, 2014: This ordinance amended and validated the laws related to the nationalisation of textile undertakings.
• The Andhra Pradesh Reorganisation (Amendment) Ordinance, 2014: This ordinance brought about amendments in the reorganisation of Andhra Pradesh.

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