Ordinances have once again become a live political issue, with the president expressing strong views on them. The media and the Opposition have already laid into the government for promulgating ordinances on insurance, land acquisition etc. In some cases, bills are pending before Parliament or its committees and the question had arisen whether the government could still go ahead with promulgation. Going by precedent, this is clearly permissible. In fact, as early as in 1950, an ordinance was issued even though the Sugar Crisis Enquiring Authority Bill was pending in Parliament.
Constitutional experts, the Opposition and the media are against the government issuing ordinances. Generally, their opposition is based on the grounds that an ordinance is an undemocratic route to lawmaking, which is the job of the legislature. Therefore, any executive attempt at lawmaking is bad, they argue.
An ordinance is a temporary law passed by the executive to meet an emergency that necessitates immediate legislative action. Article 123 of the Constitution vests the power to issue an ordinance with the president and Article 213 with the governor of a state. The only condition laid down by the Constitution is that there should be circumstances necessitating immediate action and that Parliament should not be in session. The apex court has said that the president or the governor is free to decide whether such circumstances indeed exist.
It is true that neither the British nor the US government has the power to issue ordinances. Separation of power is zealously guarded in those countries. Therefore, they cannot countenance the use of legislative power by the executive. However, the Government of India Act, 1935, contained a provision for issuing ordinances that was later included in the Constitution with proper safeguards. The Indian Constitution confers on the executive the power to issue orders on all matters on which Parliament can make laws and to promulgate ordinances as an emergency legislative measure.
Although an ordinance is described as a legislative power of the president, in effect it is issued on the advice of the council of ministers and is hence regarded as a law made by the executive. But an ordinance has a short life as it lapses automatically six weeks after the reassembly of Parliament. Of course, Parliament has the power to disapprove an ordinance, which would mean it immediately ceases to be in force. Incidentally, an ordinance, whose lifespan is predetermined by the Constitution, need not be approved by Parliament. What Parliament approves is a regular bill that is moved to replace the ordinance.
It is customary for governments to issue ordinances when the legislature is in recess. And since the ordinance-making power has been conferred on the executive by the Constitution, it cannot be faulted for issuing one. The only test is whether the circumstances require immediate action. In many cases, ordinances are issued when there is no emergency, particularly in the states. Recently, the president issued as many as eight ordinances soon after the prorogation of Parliament. Many relate to bills pending before the Houses. Since the Rajya Sabha was dysfunctional, some bills could not be passed during the last session. These are central to the economic liberalisation policy of the government. So, it took recourse to ordinances in order to move quickly to remove bottlenecks in infrastructure. There is undoubtedly an urgency for economic reforms, which have been badly delayed so far, severely affecting growth. Urgent legislation is required to accelerate the growth process. The continued disruptions of Parliament have, in fact, created a situation where crucial bills are held up. Under such circumstances, what are the options available to the government? It could either sit with its fingers crossed and wait for Parliament to function smoothly or take the ordinance route. Since the ordinances came into force immediately, all the crucial laws that could not be passed by Parliament have already come into effect. The disruption of Parliament is not normal or acceptable. It blocks all legislative work of the government. After disrupting the Houses and blocking the passage of bills, one cannot turn around and say that issuing ordinances is undemocratic. Considering the context, it can’t be said that promulgating the ordinances was egregious.
The practice becomes unacceptable when it degenerates into an “ordinance raj”, where ordinances are seldom brought before the legislature but are re-issued again and again, violating the spirit of the Constitution. In D.C. Wadhwa and others vs State of Bihar and others, 1987, the apex court strongly deprecated this practice and termed it constitutional fraud. That judicial intervention would be inevitable in the case of an ordinance raj was established by the court as far back as in 1970 in its judgment in Rustom Cavasjee Cooper vs Union of India. So when the executive starts abusing its power to issue ordinances, the judiciary could set it right. Otherwise, the executive should be free to decide when and what ordinances should be issued. This is in conformity with the judicial pronouncements on the matter.
The writer is a former secretary-general, Lok Sabha