Recently, the President repromulgated the Securities Laws (Amendment) Ordinance, 2014, which expands the Securities and Exchange Board Act’s (SEBI) powers related to search and seizure and permits SEBI to enter into consent settlements. The President also promulgated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, which establishes special courts for the trial of offences against members of Scheduled Castes and Scheduled Tribes. With the promulgation of these two Ordinances, a total of 25 Ordinances have been promulgated during the term of the 15th Lok Sabha so far. Ordinances are temporary laws which can be issued by the President when Parliament is not in session. Ordinances are issued by the President based on the advice of the Union Cabinet. The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session. Often though Ordinances are used by governments to pass legislation which is currently pending in Parliament, as was the case with the Food Security Ordinance last year. Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident. Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been promulgated. The graph below gives a breakdown of the number of Bills passed by each Lok Sabha since 1952, as well as the number of Ordinances promulgated during each Lok Sabha. Ordinance Making Power of the President The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws. Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’. Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses. History of Ordinances Ordinances were incorporated into the Constitution from Section 42 and 43 of the Government of India Act, 1935, which authorised the then Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’. Interestingly, most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long. Ordinances became part of the Indian Constitution after much debate and discussion. Some Members of the Constituent Assembly emphasised that the Ordinance making power of the President was extraordinary and issuing of Ordinances could be interpreted as against constitutional morality. Some Members felt that Ordinances were a hindrance to personal freedom and a relic of foreign rule. Others argued that Ordinances should be left as a provision to be used only in the case of emergencies, for example, in the breakdown of State machinery. As a safeguard, Members argued that the provision that a session of Parliament must be held within 6 months of passing an Ordinance be added. Repromulgation of Ordinances Ordinances are only temporary laws as they must be approved by Parliament within six weeks of reassembling or they shall cease to operate. However, governments have promulgated some ordinances multiple times. For example, The Securities Laws (Amendment) Ordinance, 2014 was recently repromulgated for the third time during the term of the 15th Lok Sabha. Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body. In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, where the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate Ordinances, the Constitution Bench headed by Chief Justice P.N. Bhagwati observed: “The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be "perverted to serve political ends". It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.”Thanks to Vinayak Rajesekhar for helping with research on this blog post.
Elections to the 13th Legislative Assembly of Gujarat are scheduled to be held in two phases on the 13th and 17th of December. The BJP has been the dominant majority party in the Assembly since 1995. The 2002 elections saw the largest victory for the party, winning 127 seats. The Congress last held power in Gujarat in 1985. In the Assembly elections held for the the seventh Assembly, the Congress had a clear majority of 149 seats. In 1990, the Janata Dal emerged as the largest party with 70 seats. The BJP registered major gains in 1990, improving their tally of 11 seats in 1985 to 67 seats. The Congress came third with 33 seats. The electoral trends over the last 22 years may be viewed here. In the current Assembly, 117 of the 182 seats are held by the BJP. It is useful to look at the work done by the 12th Gujarat Assembly during its term from 2008 to 2012. Here we look at key metrics like the number of days the assembly was in session, members’ attendance, and legislative business. Performance of the Assembly During its five year term, the assembly sat for a total of 157 days – an average of 31 days each year. In comparison, the Lok Sabha sat for an average of 66 days each year during the period 2008 to 2011. In the same period the Kerala Assembly sat for an average of 50 days – highest among states - followed by Maharashtra (44). However, the Gujarat Assembly sat for more number of days than the Haryana Assembly which sat for an average of 13 days and Rajasthan (24). The average attendance among Gujarat MLAs stood at 83% for the whole term, with two members registering 100% attendance. 87 Bills were passed by the Assembly since the beginning of its term in 2008 till September 2011. Of these, 80 Bills i.e. over 90% of all Bills were passed on the same day as they were introduced. None of the Bills were referred to any Committee. In the Budget Session of 2011, 31 Bills were passed of which 21 were introduced and passed within three sitting days Amendments sought by the President and the Governor One of the significant laws passed by the 12th Assembly was the Gujarat Control of Terrorism and Organised Crime Bill, 2003 which was introduced and passed in July 2009. However the Bill did not receive the Presidents Assent and was sent back to the Gujarat Assembly for amendments. In December 2009, the assembly passed the Gujarat Local Authorities Laws (Amendment) Bill 2009 which sought to make voting compulsory in elections to local self-government bodies like municipal corporations and Panchayats. The Gujarat governor returned the Bill for reconsideration in 2010. It was re-introduced in the house in September 2010 without changes. Another Bill that was returned by the Governor was the Gujarat Regularisation of Unauthorised Development Bill which sought to regularise unauthorised construction on payment of an Impact Fee. The Bill was passed by the Assembly in March 2011. The Governor returned the Bill with a suggestion to include a provision to bar the regularisation of unauthorised construction beyond a specified date. The Bill was re-introduced and passed with amendments by the Assembly in September 2011.