Constitution makers provided ordinance powers for the executive to deal with exigency situations. However, it has been utilised to bypass the legislature many a times. In this context, analyse the impact of frequent resort to ordinances on various factors of democracy by illustrating Supreme Court judgements.
- Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament Body
The ordinance-making power is the most important legislative power of the President and Governor. It has been vested in him to deal with unforeseen or urgent matters
But, the exercises of this power by the President, is subject to the following four limitations:
- He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session
- He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action
- An ordinance can be issued only on those subjects on which the Parliament can make laws
- An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights
- Every ordinance issued by the President during the recess of parliament must be laid before both the Houses of Parliament when it reassembles. If the ordinance is approved by both the Houses, it becomes an act.
The President can also withdraw an ordinance at any time. However, his power of ordinance-making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.
How this Ordinance making power has been misused, to bypass legislatures?
- The president should be satisfied that the existing circumstances are of such nature that an immediate law is imperative. But, each and every ordinance passed till date has been questioned on the urgency requirement
- The condition of approval by the parliament within 6 weeks of date of convening of the session was kept for responding to the urgency of the situation
- The National Food Security Ordinance which was introduced in early 2013 was questioned on the same grounds, where the Government tried to wrap up 5 years’ work in just a day
- The Union government in 2013, brought in ordinance declaring section 8(4)[v] of the Representation of People’s act valid against the Supreme Court ruling that declared it invalid
- This ordinance came just before the CBI court was about to give a decision on a case pending against the then Bihar chief minister
- In many instances, after the ordinance gets lapsed without getting passed in the houses within 6 weeks of reassembly, the government re- promulgates it once the house is not in session
- The Government of Bihar brazenly promulgated 256 ordinances between 1967 and 1981 whereas the state assembly passed only 189 acts in the same period
The impact of frequent resort to ordinances on various factors of democracy:
- Frequent resort to use of Ordinance powers by executive leads to blatant disregard of the ”Basic structure doctrine”, that includes separation of power as one of its entity and it can be said to be a trial by the executive to usurp the power of the legislature which would be a fraud on the constitution
- In D.C. Wadhwa and Ors v State of Bihar and Ors[viii], this was challenged and Bhagwati J. ruled that the ordinance making power could be exercised by the executive only when there was an emergent situation that needed redressed and it cannot be “perverted to serve political ends
- Also, in P. Vajravelu Mudaliar v Special Deputy Collector, it was held that such an abuse of the power by the executive in a covert and indirect manner would be colourable legislation
- The ordinance making power has been used to Transgress into the law making power, thereby hindering the preservation of Democracy
- In R C Cooper v Union of India, it was decided that an ordinance could be challenged in case an ‘immediate action’ was not required
- In A.K. Roy v Union of India, it was said that judicial review could be exercised on the president’s decision but on substantial grounds
- The requirement of Presidential satisfaction, to pass an Ordinance has led to increased Politicisation of President’s office
- Hence, in this direction, in S.R. Bommai v Union of India, it was decided that “president’s satisfaction” can be challenged on the grounds that it is mala fide or based on wholly extraneous or irrelevant grounds
It is evident that ordinances have been misused to bypass legislative processes. Hence, there needs to be more safeguards, so as to not allow the government to issue ordinances in an arbitrary manner