Article 123 and Article 213 of the Indian Constitution vest law-making powers in the hands of the President and the governors respectively to issue an ordinance which shall have a similar effect like any other Acts passed by the Indian Parliament. The aspect of urgency for the executive to step into the matter of legislation under the disguise of an ordinance making power turns out to be detrimental for the legislative wing of the Indian government. There have been several instances showcasing that the law-making power of the executive has proved to be detrimental for the country and the legislative wing. Therefore, there arises the need for creating boundaries which will set grounds for the executive to avoid misuse of its powers. This is because for a country to function, harmony and interdependency among the three organs of the government must not be compromised, rather be secured.
KEYWORDS: Ordinance, Legislature, Executive, government, Parliament
INTRODUCTION TO ORDINANCE
The Indian Constitution provides the three organs of the government namely the executive, legislature and judiciary with specific functions to exercise. The Indian government system brings in restrictions when it comes to the implementation of the Doctrine of Separation of Powers and therefore, from here it can be inferred that the organs of the government are independently independent but not interdependently independent. Therefore, abiding by the above notion, the constitution vests law-making power on the executive as well. This law-making power has been provided with the name of ‘ordinance.’ It was in the case of Gurudevdatta V.K.S.S.S. Maryadit v. State of Maharashtra, where the apex court made a decision that the power of the executive of issuing ordinance is legislative by nature.
Article 123 of the Constitution of India authorizes the executive to issue ordinance subject to two conditions:
- When the houses of the Parliament are not in session, thereby aiming to eliminate the authority of the legislature completely;
- When such circumstances arise that are sufficient enough to lead the President towards taking prompt decisions, is this situation he may issue an ordinance as well.
While such power is vested with the centre, similarly Article 213 of the Constitution of India makes way for the provincial head to possess a similar kind of authority. Article 213 vests the ordinance making power in the hands of the Governor subjecting it to similar kinds of exception as existing in case of the President. Debates, discussions, cross-talks, all arose when it came to the matter of discussing the limits of the legislative power of the executive. Therefore, what was initially decided became a framework for the functioning of the ordinance making power. The Parliament approved it within six weeks of reassembling the house. Thus, if either house disagreed on the subject for which ordinance has been issued, the power of the President ceases to continue thereof. Further the 44th (Amendment ) Act of 1978 highlighted that the President’s authority is subjected to challenges if the motive behind it is found to be an outcome of mala-fide intentions and bad faith .
ORDINANCE: THE POWER-STEALING TOOL
Article 123 and 213, both, mentioning the legislative powers of the President and Governor respectively highlight the aspect of urgency for the executive to step into the matters of legislation under the guise of ordinance-making. The Parliament has the power of legislating over certain subjects along with particular limitations, therefore, ordinances can be made on these subjects and they too are subjected to these limitations. An ordinance, result of the legislative authority of the executive, is required to be transformed into a legislation within a period of 42 days of initiation of the Parliament session, otherwise, it lapses. An ordinance can be re-promulgated only thrice, but strong views have been exercised to be against the idea of promulgation. It has been considered to be an undemocratic trail leading to law-making, similar to the function of the legislature. This issuing and re-issuing of ordinances are viewed to be ultra vires causing an ‘ordinance raj.’ This engagement in the practice of re-promulgation of ordinances was framed as a ‘constitutional fraud’ in the case of D.C Wadhwa and Ors v. State of Bihar and Ors. In this case, Bhagwati J. also focussed on the executive getting an opportunity of utilising such a power only in an emergency situation that required it. Although here the criteria of an urgent situation have to be according to presidential satisfaction. The 44th Constitutional Amendment put forth the condition of the present decision being subjected to judicial review but on the basis of preferable grounds. Taking into concern the case of AK Roy v. Union of India, which examined the constitutionality of the National Security Ordinance, 1980, that was upon situations where preventive detention could be sought. The court here opined that the President’s Ordinance making power is not beyond the scope of judicial review. However, because of inadequate evidence, this could not be dealt with further. It also highlighted the necessity of exercising judicial review over the President’s decision with sufficient grounds to challenge it.
However, the judiciary, never clarifying its stance on this matter, turned it into a profitable situation for the executive, as it became a power stealing tool which could actually result in passing of ordinances without any checks and balances. In the case of T Venkata Reddy v. State of Andhra Pradesh, while excogitating on the matter of promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984, the court emphasized on the ordinance making power of the executive to be synonymous to that of a legislative power comparable to the Parliament and state legislatures. This, therefore, put forth that the intention of the executive could not be questioned just like with the Parliament’s and state legislature’s legislations.
The executive has been given the role of executing the laws which are made or framed by the legislature. Therefore, one function of an organ of the government leads to another function. By the medium of the ordinance, the beam balance representing the symbol of power and authority, carrying the executive and the legislature on either side, bends more towards the executive. This leads to differences in the measure of the weight of the organs. This also breaks the balance in the weights. This illustration although is simpler to understand, the meaning and the inference drawn from the same are indeed thoughtful.
EFFECTUATION OF ORDINANCES OVER THE YEARS
From the years 1990-1999, about 20 ordinances were promulgated each year on an average. What can be inferred from such data is that the country had faced severe government instability during those years. This observation is indeed true for the rate at which ordinances were promulgated and reduced by 7 per week between 2000-2007. In a developing country like India, where issues related to social, economic and political factors are common, insights strong governance is essential. However, does that loophole make way for the executive to take over the legislative function which revolves around the Indian government system as an interrogation? The fact that the function of the legislature goes through the executive’s check should not be ignored. The elected representatives of the Parliament are equipped with the right to raise the question to which the executive must come with a solution. The ordinance making authority of the executive makes it necessary for the legislature to compromise with its right of asking questions, thereby making one of the organs of the government weaker than the other two. It is to be noted that the ordinance is summoned on the following grounds.
- When the ordinance amounts to be a colourable legislation
- When the ordinance is in direct conflict with the Fundamental Rights laid down in Part III of the Indian constitution.
- When the retrospectively of the ordinance is unconstitutional by nature, and
- When the ordinance violates any relevant provision of the Indian constitution.
It would be correct to say that there are checks upon the power of promulgation of an ordinance by the executive but the fact that the implementation of the same is necessary with full force and efficiency cannot be solely ignored.
Between the period of 1952 and 2006, 615 ordinances had been issued by the executive and among the ordinances, a few counted were matters that required urgent decisions. It was in 1978, the then Prime Minister of India, Moraji Desai, introduced an ordinance on the subject of demonetization of currency notes with denominations of 10,000, 5000 and 1000 on the grounds of coping up with the trends of inflation in the economy and growing corruption in the country. Promulgation of an ordinance in such cases is valid for it aims to bring welfare in the country. On the contrary, a classic example of misuse of ordinance issuing power of the executive was by Indira Gandhi’s government who made a scandalous move by issuing ordinance on the subject of nationalization of banks. Taking into concern the subject upon which the ordinance was issued, the subject was not a matter of urgency or emergency and therefore could have been the object of the discussion by the Parliament. Further, in several promulgation cases, it has been noticed that the issue of the ordinance was either a few days before the Parliament was about to conduct its session or just after the houses of the Parliament adjourned their session.
It is the Supreme Court which has idealised the ordinance making power as ever – lasting in nature which has initiated the growth of several problems. Therefore, what can be inferred from the same is that even if the law by the executive lapses, the official actions associated with it, which are supposed to be lapsed, remain valid. Thus actions are implemented and are followed without a strong backbone of regulations. These kinds of actions are responsible for the fall out of the government thereby affecting the governance of the country.
To conclude the topic which is highly debatable by nature it can be said that issuing of ordinances during emergencies should be unanimously supported by the Parliament, but the articulation of such ordinances in absence of such emergencies is not considered to be a good trend. The law-making authority provided to the executive must be subjected to such limitations that are implemented in reality to avoid conflict with other organs of the government. This will indeed be the starting of an efficient system of government.
Author: Shoronya Banerjee and Oishika Banerji, Amity Law School, Kolkata