Politics of Ordinance

The term "ordinance" is defined by the Oxford dictionary as an authoritative

order. Ordinance is a decree or law promulgated by a state or national
government without the consent of the legislature. It includes examples such as
collecting revenue through new taxes or harnessing resources during an
emergency or threat. For an ordinance to be enforced effectively, it must not be
in conflict with any higher law such as state or national law or constitutional
provisions.

Article 123 of the Constitution of India grants the President certain law-making
powers to promulgate ordinances when either of the two Houses of Parliament
is not in session. Hence, it is not possible for the ordinances to be issued in the
Parliament. The fundamental reason for bestowing the executive with the power
to issue ordinance was “to deal with situations where an emergency in the
country necessitated urgent action.”

An ordinance may be concerned with any subject that the Parliament has the
power to legislate on and also has the same limitations as the Parliament to
legislate according to the distribution of powers between the Union, State and
Concurrent Lists. There are three limitations with regard to the ordinance
making power of the executive. They are:

 The President can only promulgate an ordinance when either of the two
Houses of Parliament is not in session.
  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 will also cease to
operate in case resolutions disapproving the ordinance are passed by both
the Houses.

An ordinance has to be converted into legislation within 42 days of

commencement of the Parliament session, or else it will lapse. An ordinance can
be re-promulgated only thrice. The governor of a state can also issue ordinances
under Article 213 of the Constitution of India, when the state legislative
assembly is not in session.

Origin of Ordinance
The origin of the Ordinance-making power of the Chief Executive in India can
be traced back to the Indian Councils Act, 1861, which empowered the
Governor-General in case of Emergency, to promulgate Ordinances which were
to remain in force for not more than six months. The said provision was
continued in subsequent constitutional enactments The Government of India,
Act, 1935 also provided for promulgation of Ordinances by the Governor
General in his discretion during the recess of the Legislature. However, the
restriction on the period of operation of the ordinances was removed by the
India and 3 Burma (Emergency Provisions) Act, 1940. Similarly adoption of
Section 42 of the Government of India Act, 1935 by the India (Provisional
Constitution) Order, 194? omitted the existing stipulation, ‘that the Ordinance 4
was subject to disallowance by the Crown1'. The Ordinance making power as
conferred upon the President/Governor is exercised when the
President/Governor is satisfied that circumstances exist which render it
necessary for them to take immediate action, and may promulgate such
Ordinances as the circumstances appear them to require.

Ordinance making power of President

Article 123 of the Constitution grants the President certain law making powers
to promulgate Ordinances when either of the two Houses of Parliament is not in
session and hence it is not possible to enact laws in the Parliament. This
technique of issuing an ordinance has been devised with a view to enabling the
executive to meet any unforeseen or urgent situation arising in the Country
when Parliament is not in session, and which it cannot deal with under the
ordinary law.

Article 123 of the Indian Constitution reads as:

‘If at any time, except when both Houses of Parliament are in session, the
President is satisfied that circumstances exist which render it necessary for him
to take immediate action, he may promulgate such Ordinances as the
circumstances appear to him to require.”

Thus, the essential requirements in order to pass an ordinance are:

 When both the houses are not in session

 President is satisfied that the present circumstances are in dire need of
some immediate action.

1
4. Section 42 of the Government of India Act, 1935 substituted by the India (Provisional Constitution) Order,
1947.
The word satisfaction as mentioned in Article 123(1) refers to the satisfaction of
council of ministers as in the case of RC Cooper v Union of India2, it was held
that the orninace is promulgated in the name of president and in the
constitutional sense on the satisfaction of the council of ministers.

The clause 2 of Article 123 further mentions the provison sregarding the
validity of the ordinance, it states that:

(2) An Ordinance promulgated under this article shall have the same force and
effect as an Act of Parliament, but every such Ordinance—

(a) shall be laid before both Houses of Parliament and shall cease to operate at
the expiration of six weeks from the reassembly of Parliament, or, if before the
expiration of that period resolutions disapproving it are passed by both Houses,
upon the passing of the second of those resolutions; and

(b) may be withdrawn at any time by the President.

The ordinance making power of the president is co-extensive with the

legislative power of the parliament. The ordinance making power can be thus
exercised on any subject matter in respect of which the parliament has power to
legislate and to the matters for which the parliament is not competent to make
any law, ordinance on such issue will be void as mentioned in the clause 3 of
the Article 123 which states that:

(3) If and so far as an Ordinance under this article makes any provision which
Parliament would not under this Constitution be competent to enact, it shall be
void.

As the first Prime Minister to work the Indian Constitution, Jawaharlal Nehru
had a unique opportunity to define the limits of Article 123. He took that task
2
rather lightly. In fact, three ordinances were promulgated on the very day the
Constitution came into effect on January 26, 1950. And by the end of that year,
eighteen more had been promulgated. The careless approach greatly bothered G.
V. Mavalankar, India’s first speaker of the Lok Sabha. Worried that an easy
reliance on ordinances would render Parliament irrelevant, he wrote to Nehru,
saying that “the house carries a sense of being ignored, and the Central
Secretariat, perhaps, gets into the habit of slackness,” neither of which “was
conducive to the development of the best parliamentary traditions.” He again
persisted in 1954, urging Nehru to limit ordinances only to cases of “extreme
urgency or emergency.” His letters never received due attention. 

By the time Nehru died in May 1964, he had already promulgated 102
ordinances under the Indian Constitution. 

Ordinances promulgated from year 1950- 2008, are overwhelming in the areas
of Finance (129 in number), Labour (46), commerce & Industry (28), Home
Affair (102) and Law and Justice (29). Out of these a very few of them can be
classified under actual emergencies, and hence necessary as a constitutional
obligation.

While the number of Ordinances issued under the supervision of first, second,
third and fourth Lok Sabha which was 39, 20, 31, and 34 respectively. The
ordinances promulgated increased thrice in the Fifth Lok Sabha, ie. 93
Ordinances were promulgated.

The up-going trend was reversed by the Janta Dal which during their three year
term of governance promulgated only 34 Ordinances from 1977-1979. The next
two governments had promulgated an average number of 10 Ordinances per
year. The Narasimha Rao Government from year 1991-1996 had promulgated
an average of 21 ordinances per year and none of the ordinance had ever dealt
with either the corruption scam or with the prevailing political instability. In
fact none of them were re-introduced as Bill in the parliament. The National
Democratic Alliance (NDA) Government from year 1998-2004 had
promulgated an average of 14.6 Ordinances per year and later the UPA
Government from year 2004-2009 had promulgated an average of 6.8
Ordinances per year.

Ordinance and Politics

Article 123 expressly states that ‘If at any time, except when both Houses of
Parliament are in session, the President is satisfied that circumstances exist
which render it necessary for him to take immediate action, he may promulgate
such Ordinances as the circumstances appear to him to require.”

It’s equally clear even from the bare text of the Constitution that the authority
to issue ordinances is to be used only to meet the emergent demands of
extraordinary situations i,e; when both Houses of Parliament are not in session,
if the President is satisfied that “circumstances exist which render it necessary
for him to take immediate action.

Article 213 of the Constitution places on the Governor, acting on the advice of
the Council of Ministers of his State, the power to pass ordinances on subjects
of State authority

In practice, however, ordinances have scarcely been used as a purely

exceptional measure. Rather, ordianance has became a tool in the hands of the
government in power to misuse the powers conferred which in a way gives rise
to arbitrariness. The question regarding the sudden urgency still prevails in
almost each and every ordinance passed till date.

Perhaps the tragedy of Article 123 is not that the provision has been frequently
used, but the real circumstances under which it has been used. Among the
ordinances promulgated between 1952 and 2009, about 177 were brought into
effect just fifteen days before parliamentary sessions were to commence or just
fifteen days after parliamentary sessions ended. Then, there have been instances
when cabinets have promulgated ordinances in full knowledge that they did not
have the majority support necessary to get parliamentary approval in due
course.

Article 123, in that sense, became an alternative route by which to “enact”

legislation that did not have majority support. The Prevention of Terrorism
Ordinance 2001 is a good example. Occasionally, cabinets also promulgated
ordinances simply to avoid parliamentary scrutiny at the first instance,
especially when the proposed measures were unpopular. Narasimha Rao’s
Patent (Amendment) Ordinances, 1994 meant to implement WTO reforms is a
good example of this. And cabinets have also resorted to the mechanism simply
to gain the political upper hand. Indira Gandhi’s Bank Nationalization
Ordinance, 1969 just one day before the start of the parliamentary session in
July 1969 is a good example

The case of D.C. Wadhwa v State of Bihar 3 furnishes a glaring example of

abuse of Ordinance making power[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.” The court further described the practice of
re-promulgation as Anti-democratic.

In the concerned case, it was found that between 1967 and 1981, the Bihar
Governor promulgated 256 Ordinances and all thses were sustained for a very
long period of time ranging from one to fourteen years by re-promulagation
from time to time and out of these only 69 were re-promulgated with the prior
permission of the President of India. The matter was carried to the court by the
professor who had carried a detail research in the matter. The court ordered the
Bihar Government to pay Rs.10,000 to the petitioner for expenses as a aresult

3
of whose research and efforts the matter was brought to the knowledge of the
court.

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.[vii] This led 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.

Also, in P. Vajravelu Mudaliar v Special Deputy Collector[ix], it was held that

such an abuse of the power by the executive in a covert and indirect manner
would be colourable legislation. If a constitutional authority does an act which
is not expressly permitted by the constitution, it would amount to fraud on the
constitution.

A similar case of abuse of power that had been placed before the Supreme
Court for its examination in Krishna Kumar Singh. In the case of Krishna
Kumar Singh v State of Bihar, the court held that the re-promulgation of
ordinance is a fraud on the constitution and a subversion of democratic
legislative process. The supreme court further held that the ordinance making
power does not constitute the president/governor into a parallel case of law
making or an independent legislative authority.

Recently, one of the highlights of outgoing President Pranab Mukherjee's

farewell speech was his remarks on the perils of ordinance raj. Ex- President
Mr. Pranab Mukherjee warned the public and government reagarding the
misuse of the Ordinance making power in his farewell speech on the expiration
of his term as the President of India.
He said,

"I am firm in the opinion that the ordinance route should be used only in
compelling circumstances and there should be no recourse to ordinances on
monetary matters. Ordinance route should not be taken on matters which are
being considered or have been introduced in the House or a committee of the
House. If a matter is deemed urgent, the concerned committee should be made
aware of the situation and should be mandated to present its report within the
stipulated time."

He said that the ordinance route should be used only in exceptional

circumstance when there is a dire need to implement ceratin law in any sybject
matter as mentioned in article 123 of the Constitution. The Ex-President of
India, Pranab Mukherjee has expressed his strong opinion on promulgating
ordinances in this manner,which has drawn widespread attention to the topic.

An ordinance is described as a legislative power of the President; issued on the

advice of the council of ministers and is hence considered to be a law made by
the executive. However, when ordinances are frequently issued and re-issued, it
violates the spirit of the Constitution and result in an ‘ordinance raj’, which is
not desirable.

Ordinances promulgated from year 1950- 2008, are overwhelming in the areas.
Under the present government, the following ordinances have been
promulgated:

 The Mines and Minerals (Development and Regulation) Amendment

Ordinance, 2015
 The Motor Vehicles (Amendment) Ordinance, 2015
  The Citizenship (Amendment) Ordinance, 2015
 The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Amendment) Ordinance, 2014
 The Insurance Laws (Amendment) Ordinance, 2014
 The Coal Mines (Special Provisions) Second Ordinance, 2014
 The Textile Undertakings (Nationalisation) Laws (Amendment and
Validation) Ordinance, 2014
 The Coal Mines (Special Provisions) Ordinance, 2014
 Andhra Pradesh Reorganisation (Amendment) Ordinance 2014

Very recently, the Ordinance to criminalise the practise of “triple talaq”-

Muslim Women(Protection of Rights on Marriage) Ordinance 2018- has been
promulgated by the President of India, Ram Nath Kovind. But the same
question of urgency still revolves around the promulgatioj of this ordinance that
whether the circumstances existing demanded such an immediate action or not?

Ordinance and Judicial review

The question whether the ordinance issued by the president/governor is under
judicial review has been discussed under several cases

In the case of A.K. Roy v. Union of India4, the Supreme Court while examining
the constitutionality of the National Security Ordinance, 1980 which was issued
to provide for preventive detention in certain cases, the Supreme Court argued
that the President’s power of making Ordinances is not beyond the Judicial
Review of the court. However, the Court was unable to explore the issues of the
case further as the ordinance of the President was replaced by an Act. The court
also pointed out the need to exercise judicial review over the President’s
decision only at substantial grounds and not otherwise at every ‘casual
challenge’.

In the case of S.K.G.Sugar Ltd v. State of Bihar5, it was held that promulgating
of an Ordinance by the Governor is purely upon the Subjective Satisfaction of
him and he is the sole Judge to consider the necessity to issue the Ordinance and
“his satisfaction is not a justiciable matter”.

In the case of T. Venkata Reddy v. State of Andhra Pradesh6, the petitioner

challenged the constitutional validity of the Andhra Pradesh Abolition of Posts
of Part-time Village Officers Ordinances, 1984. One of the grounds was that the
Ordinance is void on account of the lack of mind used by the Governor and
from the commencement of the same the state legislature was disapproving it.
The ordinance is said to take effect as soon as it is promulgated by the President
and ceases to operate by the legislative act.
4
1982 AIR 710.
5
AIR 1974 SC 1533: (1974)4 SCC 827; p.832.
6
1985 AIR 724.
One of the questions which were raised in the above mentioned case by the
court was: “whether the validity of an Ordinance passed can be tested upon the
similar grounds as to those on which an executive or judicial action is tested”.
In answering the question the Supreme Court cited its own earlier judgment
given in K.Nagaraj v. State of Karnataka[5], and held that the Power of making
Ordinances is a legislative action so the same grounds as related to the law
making should be challenged than challenging the executive or judicial grounds.

Further in the case of S.R. Bommai v. Union of India[6], in this case the scope
of Judicial Review was expanded as to where the court told that where the
action by the President is taken without the relevant materials, the same would
be falling under the category of “obviously perverse” and the action would be
considered to be in bad faith. The Supreme Court held that the exercise of
power by the President under the Article 356(1) to issue proclamation is
Justiciable and subject to Judicial Review to challenge on the ground of mala
fide.

In case of State of Orissa v. Bhupendra Kumar Bose[7], the court held that the
rights and obligations which are created by the Ordinance came into effect as
soon as the Ordinance is promulgated and the same cannot be extinguished until
a proper legislature by a legislative body extinguishes those rights and
obligations of the Ordinances. However, where the Ordinances promulgated is
an abuse of power and a kind of Fraud on the constitution, then, the state
prevailing with such promulgation should immediately revive.

An ordinance would be made open to challenge on the following grounds:

 It constitutes colorable legislation; or

  It contravenes any of the Fundamental Rights as mentioned in our
Constitution; or
 It is violative of substantive provisions of Our Constitution such as an
Article 301; or
 Its retrospectively is unconstitutional.

Ordinances are however framed by the executive body which is said to be a

single, unified entity. The President is the head of the executive body who
promulgate ordinances on the advice of the council of ministers. The most
important requirement of the promulgation of the ordinances is the ‘necessity to
take the immediate action’. Then there will be no difficulty in ascertaining the
satisfaction of the President when there is real need or necessity in promulgating
the Ordinances.

The power of judicial review of ordinances was once again discussed in year
1998 in the case of Krishna Kumar Singh v State of Bihar, in this case the
Supreme Court struck down many number of ordinances stating that no
particular basis for the exercise of the Ordinance making power of the President
had been shown. It also stated: “There was also no explanation offered for
promulgating one ordinance upon another”.

Though the sheer profligacy in ordinance making power of the President had
compelled the Apex Court to perform some judicial review, there is still no
clarity on the nature and extent of the judicial review of the court over the
ordinances made by the President or the Governor.
Conclusion
Ordinances are laws that are promulgated by the President of India on the
recommendation of the Union Cabinet. They can only be issued when
Parliament is not in session. They enable the Indian government to take
immediate legislative action.

Ordinances cease to operate either if Parliament does not approve of them

within six weeks of reassembly, or if disapproving resolutions are passed by
both Houses. It is also compulsory for a session of Parliament to be held within
six months. The ordinance making power of President is co extensive with the
legislative power of the parliament. The exceptions available to the legislative
power of the legislature are concomitant to the exceptions available to the
ordinance making power.

Sometimes it is used to meet one’s political ends by intimidating and

browbeating the political opposition, which was not the objective of the
founders of the constitution of incorporating such provision in the constitution.

Therefore, it should be judicially reviewed if such need arises as was done in

the D. K. Basu case[18] and the Krishna Kumar Singh case[19] where large
number of ordinances promulgated and repromulgated again were struck down
by the Supreme Court as no explanation was provided for promulgating the
ordinance. So the Executive needs to strike a balance and has to be wary of the
side effects of the ordinance on Part III of the Indian constitution and
democratic setup of the country.

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. The court’s verdict has
to be seen as placing a vital check on what has until now been a power
rampantly abused by the executive.