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| Judicious use of ordinances is healthy for democracy | | | NIKHIL GUPTA | 1/17/2015 11:55:15 PM |
| Article 123 of the Indian Constitution empowers the
President to promulgate ordinances during the recess of
the Parliament. The ordinances are temporary laws having the effect of an act or law . Promulgation of ordinance is considered one of the important legislative powers of the President . This power however is subject to some limitations like an ordinance may be made under circumstances which require immediate action. Another limitation is that an ordinance can be made only on subjects on which Parliament can make laws and is subject to the limitations, to which a Parliamentary law is subjected. The promulgated ordinance needs to be presented before the Houses of Parliament within six weeks from the reassembly of Parliament . If the Houses reassemble on different dates then the period of six weeks is calculated from the later of those dates. All acts done and completed under an unapproved ordinance will lapse. The President may withdraw an ordinance at any time. However, the President exercises the power on the advice of the Council of Ministers headed by the Prime Minister This unusual power has been given to the President, so that the Executive can deal with a situation of urgency. Ordinance is a law made by the executive. In a democracy like India wherein the principle of separation of powers operates, it is the prerogative of the legislature to make laws.
However if the parliament is not in session and when such extra-ordinary unforeseen and emergent circumstances exist wherein the legislation can't wait, then the President is empowered under the article 123 to legislate by promulgating ordinances. Ordinances carry the full force of a law similar to one made by the legislature which also implies that it has similar limitations like ordinary laws i.e an ordinance is null and void if it violates fundamental rights. A good example of an Ordinance is POTO ( Prevention of Terrorism Ordinance ) which later became POTA ( Prevention of Terrorism Act ) when the Parliament approved it in a joint sitting . There is a separation of powers between legislature , executive and the judiciary and each organ has different sphere of influence . The legislature is responsible for law making, the executive is responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws. But in reality , there are several overlaps in the functions and powers of the three institutions. For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation. In RC Cooper vs. Union of India (1970) case the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalize 14 of India's largest commercial banks, held that the President's decision could be challenged on the grounds that 'immediate action' was not required and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature. But the parliament brought 38thConstitutional Amendment Act that inserted a new clause (4) in Article 123 stating that the President's satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground . But the 44thConstitutional Amendment Act in 1978 reopened the possibility for the judicial review of the President's decision to promulgate an Ordinance. Further in AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance which sought to provide for preventive detention in certain cases, the Court argued that the President's Ordinance making power is not beyond the scope of judicial review. The court also pointed out the need to exercise judicial review over the President's decision only when there were substantial grounds to challenge the decision . In another case of T Venkata Reddy vs.State of Andhra Pradesh the Court reiterated that the Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively. This implies that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures . It is pointed out that the executive has resorted to the ordinance route on multiple occasions since the implementation of the constitutional democracy in India. Some people consider the ordinance route as unhealthy but they fail to understand that issuance of ordinances is a perfectly fair constitutional mechanism . The above given cases clearly demonstrate that the courts in India have not questioned the issuance of ordinances even while they have kept the process of judicial review open for the issued ordinances . As we all know that constitution of India is hugely borrowed from the Government of India Act 1935 . It is wrong to say that any one person made our constitution of India . In fact various sections in the constitution of India are borrowed from various different constitutions of the world like American constitution , British constitution , Australian constitution , German constitution , Canadian constitution , Ireland constitution and to small extent constitution of the then USSR and the constitution of Japan .
Most importantly large part of the constitution was taken from the Government of India Act 1935 . In this regard the chairman of the Drafting Committee of the Constitutional Assembly BR Ambedkar, said: "As to the accusation that the Draft Constitution has [re]produced a good part of the provisions of the Government of India Act, 1935,"I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution…." . . And even in the Government of India Act, 1935 there were Articles 42 and 43 that gave the power of issuing the ordinances to the Governor General of India . Thus we see that right from the British times the issuance of the ordinances was considered a legitimate thing . But the law should be respected in both letter and the spirit . The main objection of the people who are against the issuance of the ordinances is that this bypasses the legislature and thus bypasses the due process of the law . But the ordinances are to be passed by the legislature within six weeks of the reassembly of the legislature .
There is another grey area where the government of the day reissues the same ordinance . This needs to be plugged in our constitution and some time frame should be kept after which the government of the day is not allowed to reissue the ordinance on the same subject without the approval of the parliament . Theoretically it is possible that the government issues ordinance but does not present it to the legislature even after the legislature has reassembled . If it lapses then the government reissues the ordinance when the legislature is in recess . But the government that has majority in both Lok sabha and the Rajya sabha does not need to do this as it can easily crack the whip and get the ordinance passed and ratified by the legislature . What if the government of the day does have majority in Lok sabha but lacks majority in Rajya Sabha ? In this case if the opposition is united against the ordinance then it can block the passage of the ordinance in the Rajya Sabha . We all know that the power of the Lok Sabha is supreme in case of the money bills but it is not so in case of the bills or acts that are not the money bills . In case of the money bills , the passage is comparatively easy because the government of the day has majority in the Lok Sabha and even if Rajya Sabha refuses to pass the money bill , it can still become law . But in case of non money bills the role of the Rajya Sabha is very important .
The present government headed by honorable Narendra Modi ji has clear majority in the Lok sabha but lacks majority in the Rajya Sabha . The government wants to pursue the agenda of the reforms for the benefit of the people of this country . Perhaps that's why the government of the day has issued many ordinances on important issues such as hiking FDI limit in capital-starved insurance sector, auctioning of coal blocks and enabling land acquisition for infrastructure and housing projects . The government wants to make India developed and is thus making policies within the framework of the law and Constitution to carry forward the task of making a new India . In this scenario the ordinances issued by the present government have to be ratified by the parliament i.e. both Lok Sabha and the Rajya Sabha . There is a good mechanism called as joint sitting of both houses of the parliament in such scenarios . The option of the joint sitting is available to the government for passing the ordinances in the parliament . Thus we see that if the government wants to do reforms and make India developed then there is nothing that can stop the government from doing so and in my view the judicious use of the ordinances is healthy for our democracy .
The court cases on the ordinances are taken from the official blogsite of the PRS legislative research . Further the content has no bearing on any person or any organization and the author is guided by the motto " THE ROYALE GUPTA WARRIORS NEVER FIGHT FOR THEMSELVES BUT FIGHT FOR A BIGGER CAUSE " . Vande Matram and Jai Hind . Author can be contacted on [email protected] |
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