Ordinance making powers of the Executive in India

September 27th, 2013 Leave a comment Go to comments

In light of the decision of the union cabinet to promulgate an Ordinance to uphold provisions of the Representation of People Act, 1951, this blog examines the Ordinance making power of the Executive in India.  The Ordinance allows legislators (Members of Parliament and Members of Legislative Assemblies) to retain membership of the legislature even after conviction, if

(a)     an appeal against the conviction is filed before a court within 90 days and

(b)     the appeal is stayed by the court.

However, the Ordinance will only be promulgated after it receives the assent of the President.

I. Separation of powers between the Legislature, Executive and Judiciary

In India, the central and state legislatures are responsible for law making, the central and state governments are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws.

However, there are several overlaps in the functions and powers of the three institutions.  For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation.

II. Ordinance making powers of the President

Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.[i]

An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists. Thus, the following limitations exist with regard to the Ordinance making power of the executive:

i.   Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.

ii.   Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’[ii].

iii.   Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.  They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.  

Figure 1 shows the number of Ordinances that have been promulgated in India since 1990.  The largest number of Ordinances was promulgated in 1993, and there has been a decline in the number of Ordinance promulgated since then.  However, the past year has seen a rise in the number of Ordinances promulgated.

           Figure 1: Number of national Ordinances promulgated in India since 1990

Ordinances PromulgatedSource: Ministry of Law and Justice; Agnihotri, VK (2009) ‘The Ordinance: Legislation by the Executive in India when the Parliament is not in Session’; PRS Legislative Research

III. Ordinance making powers of the Governor

Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.  The powers of the President and the Governor are broadly comparable with respect to Ordinance making.  However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill.[iii]

IV. Key debates relating to the Ordinance making powers of the Executive

There has been significant debate surrounding the Ordinance making power of the President (and Governor).  Constitutionally, important issues that have been raised include judicial review of the Ordinance making powers of the executive; the necessity for ‘immediate action’ while promulgating an Ordinance; and the granting of Ordinance making powers to the executive, given the principle of separation of powers.

Table 1 provides a brief historical overview of the manner in which the debate on the Ordinance making powers of the executive has evolved in India post independence.

Table 1: Key debates on the President’s Ordinance making power

Year

Legislative development

Key arguments

1970 RC Cooper vs. Union of India In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
1975 38th Constitutional Amendment Act Inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
1978 44th Constitutional Amendment Act Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance.
1980 AK Roy vs. Union of India In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”.
1985 T Venkata Reddy vs. State of Andhra Pradesh In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively. This implies that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.
1987 DC Wadhwa vs. State of Bihar It was argued in DC Wadhwa vs. State of Bihar (1987) 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.  Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature.  A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years.  The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances.
Source: Basu, DD (2010) Introduction to the Constitution of India; Singh, Mahendra P. (2008) VN Shukla’s Constitution of India; PRS Legislative Research

 

This year, the following 9 Ordinances have been promulgated:

  1. The Securities Laws (Amendment) Ordinance, 2013
  2. The Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Second Ordinance, 2013
  3. The Securities and Exchange Board of India (Amendment) Second Ordinance, 2013
  4. The National Food Security Ordinance, 2013
  5. The Indian Medical Council (Amendment) Ordinance, 2013
  6. The Securities and Exchange Board of India (Amendment) Ordinance, 2013
  7. The Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Ordinance, 2013
  8. The Criminal Law (Amendment) Ordinance, 2013
  9. The Securities Laws (Amendment) Second Ordinance, 2013

Three of these Ordinances have been re-promulgated, i.e., a second Ordinance has been promulgated to replace an existing one.  This seems to be in violation of the Supreme Court’s decision in DC Wadhwa vs. State of Bihar.

 


Notes:

[i] With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers. While the Ordinance is promulgated in the name of the President and constitutionally to his satisfaction, in fact, it is promulgated on the advice of the Council of Ministers.

[ii] Article 123, Clause (1)

[iii]  (a) if a Bill containing the same provisions would have required the previous sanction of the President for introduction into the legislature;

(b) if the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; and

(c) if an Act of the legislature containing the same provisions would have been invalid unless it received the assent of the President.

  1. Dipen
    September 27th, 2013 at 19:29 | #1

    Very informative article, Prez should go for detailed analysis from various appropriate groups & allow ordinance in very exceptional cases..

  2. October 4th, 2013 at 17:23 | #2

    Wow, this article is fastidious, my sister
    is analyzing these kids of things, so I amm going to
    inform her.

  3. Nipun Trikha
    October 29th, 2013 at 14:01 | #3

    Your article on the Ordinance of RPA Act is very interesting. However, I have a query…
    WHY your website is showing an ACT with the name RPA (Ammendment and Validation), 2013 in the webpage of “Recent Acts” ? since the ordinance was not signed by President it cannot be called as an ACT. Instead the said act also gives a date of signing by the President.

    This is very confusing for me . Kindly clarify whether such an act was signed by President or not (as is given in media)?

  4. Nipun Trikha
    October 29th, 2013 at 15:09 | #4

    @Nipun Trikha
    Further checking on e gazette of India, it is seen that such an act was signed. Though it application is not as diverse as it was being discussed in media. It only state that a person who is not allowed to vote under Sec 62 (5) doesn’t ceases to be an elector by way of imprisonment.

    That would mean that both things done by SC (disqualification of MP from date of conviction) and inability to fight elections after bieng convicted… stands as it is.
    Thus this amendment appears to be a mere extension of what is already there in the law and there are no changes (other than those bought about by SC)

  5. April 8th, 2014 at 10:42 | #5

    Hi there! Would you mind if I share your blog with my myspace group?
    There’s a lot of people that I think would really appreciate
    your content. Please let me know. Manny thanks

  6. kumar
    June 30th, 2014 at 14:29 | #6

    Could president amend the constitution through the ordinance.?

  7. Tousif iqbal
    July 18th, 2014 at 20:08 | #7

    Is advice of council of ministers for promulgating ordinance is binding on president??

  8. August 9th, 2014 at 05:41 | #8

    I do not even know the way I stopped up right here, however I believed this
    post used to be great. I don’t realize who you might
    be however certainly you are going to a famous blogger should you are not already.
    Cheers!

  9. November 11th, 2014 at 01:15 | #9

    Thanks on your marvelous posting! I really enjoyed reading it, you may be a
    great author.I will remember to bookmark your blog and will often come back down the road.
    I want to encourage you to definitely continue your great job, have a nice morning!

  10. sandeep s patil
    January 7th, 2015 at 19:03 | #10

    Good read.
    More focus on solutions to this power problem should be needed.

  11. Aftab Ahmed Khan
    January 10th, 2015 at 14:12 | #11

    Thays a very useful piece of information by Prsindia. Thank u so much

  12. noor
    January 21st, 2015 at 18:42 | #12

    what is the procedure for re promulgation of ordinance

  13. February 2nd, 2015 at 20:37 | #13

    I believe that is among the most important
    information for me. And i am glad reading your article.
    However want to statement on some normal things, The site taste is perfect, the articles is actually excellent : D.

    Excellent activity, cheers

  14. February 4th, 2015 at 13:01 | #14

    This is a great tip especially to those fresh to the blogosphere.
    Brief but very precise info… Many thanks for sharing this
    one. A must read article!

  15. Siriyal Patel
    March 7th, 2015 at 18:57 | #15

    @kumar
    Ordinance cannot be issued to amend the constitution.

  16. Wallsandfloors
    April 7th, 2015 at 08:12 | #16

    It’s not my first time to go to see this website, i am browsing this site dailly and obtain good facts
    from here every day.

  17. rahul
    May 5th, 2015 at 01:28 | #17

    can second ordinance be passer immediate after first one?

  18. Bapuji
    April 8th, 2016 at 10:39 | #18

    Whether ordinance making power of president is executive instrument or legislative device??

  1. No trackbacks yet.
*