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All you want to know about the President’s power of ordinance making

February 5th, 2013 1 comment

The President issued the Criminal Law (Amendment) Ordinance on February 3, 2013. This ordinance amends the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act. Here we explain what an ordinance is, how it is made and with what frequency it is used.

This article was first published on Rediff and can be accessed here.

What is an ordinance and who makes it?

Under the Constitution, the power to make laws rests with the legislature. However, in cases when Parliament is not in session, and ‘immediate action’ is needed, the President can issue an ordinance. An ordinance is a law, and could introduce legislative changes.

The Supreme Court has clarified that the legislative power to issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an emergent situation’. An example of immediacy can be seen in the ordinance passed in 2011 to give IIIT – Kancheepuram the status of an institute of national importance so that students could be awarded their degrees on completion of their course.

What will happen to the ordinance when Parliament meets for the Budget session?

After the ordinance is notified it is to be laid before Parliament within 6 weeks of its first sitting. The first sitting of Parliament in the Budget session this year will be February 21, 2013. Parliament could either choose to pass the ordinance, disapprove it or it may lapse within the 6 week time frame.  In addition, the President may chose to withdraw the ordinance.

Once the ordinance is laid in Parliament, the government introduces a Bill addressing the same issue. This Bill is supposed to highlight the reasons that necessitated the issue of the Ordinance. Thereafter, the Bill follows the regular law making process.

An amendment to Criminal Laws addressing similar issues is currently pending in Parliament. How will this play out vis-à-vis the ordinance?

The ordinance gives effect to some of the provisions of the Criminal Laws (Amendment) Bill, 2012, with some modifications.

In the upcoming Budget session the government may introduce a new Bill replacing both the Ordinance and the Amendment Bill currently pending in Parliament. The parliamentary Standing Committee is currently examining the Amendment Bill and is expected to submit its report by the end of March.

How often does the President use this power to make ordinances?

Data over the last 60 years indicates that 1993 saw the highest number of ordinances being passed, i.e. 34. In comparison, a fewer number of ordinances are now being issued. For example, in the last 10 years the average number of ordinances issued per year is 6.