By Diksha Mittal

Abstract

In India, laws are enacted by the central and state legislatures, implemented by the national and state governments, and interpreted by the judiciary. The three institutions’ roles and authority, however, are frequently intertwined. The Constitution gives the President legislative power under Article 123, and also the Governors of the States are given legislative power under Article 213, irrespective of the fact that the theory of separation of powers is embodied in the design of the Constitution although it is not explicitly referenced. In accordance with these two Articles, the President and the Governor have the authority to enact laws through Ordinances. It also attempts to identify any loopholes that ought to be addressed in order to prevent abuse of power. By asserting that emergent situations require immediate actions, the article further attempts to determine whether this law-making authority through ordinances has been misused or utilised by an executive as a justification.

Introduction

A recent controversial existing issue, the President had signed 11 ordinances during the lockdown that was enforced amid the Covid-19 outbreak threw up a poignant situation. Along with two in the health sector, five of the 11 ordinances are substantially associated with the outcome of Covid-19. The Banking Regulation (Amendment) Ordinance and the three agricultural-related ordinances have been the only ones that have no connection with the pandemic. As a result of the Punjab and Maharashtra Cooperative Bank controversy, the Banking Regulation (Amendment) Ordinance was passed. Two parliamentary sessions have passed since the incident came to light, yet no draft bill has been presented. As a constitutional law student, I believed India’s preamble to establish India to be a republican and democratic nation. In line with the definition of the word “democracy”, every citizen has the right to vote for an individual to represent their interests in the parliament, and the definition of the word “republic” implied that the chosen parliamentarians would voice the demands and interests of the people. Similarly, I am a 20-year-old citizen who enjoys the valuable right to vote, the right to choose parliamentarians who will represent my viewpoints and larger interests in a parliament, as well as the right to influence laws that impact both my life and thus the society around me. But as looked above an ordinance-making power had the consequence of excluding the essential parliamentarians from the decision-making process. It causes me to question its impact on democracy as well as the worth of my priceless right to vote. Although, this power can be justified in times of emergent situations requiring immediate actions when the state enters into a state of unrest and society requires instant actions, one needs to critically examine these situations and cases in which bills have been re-enacted. In this article, therefore I aspire to critically evaluate the executive’s authority to issue ordinances and examine instances when that authority has been abused. 

Article 123 of the Constitution of India grants the President the power to promulgate ordinances on the recommendation of the Union Cabinet, when the Parliament is not in session, to ensure action when it is urgently required to enable the welfare of the people. Many people have questioned if this power poses a threat to parliamentary democracy in light of how it has been used previously in India. Sections 42 and 43 of the 1935 Government of India Act served as the basis for Article 123. These Sections addressed the governor general’s legislative authority and permitted the issuance of ordinances “if circumstances exist which render it necessary for him to take immediate action.” In the same manner, Article 213, which grants state governments the power to pass such ordinances, was established. Both of these articles’ defining characteristics are that there must not be a parliamentary session, there must be a necessity, and there must be an immediate need for action. Additionally, such an ordinance must be approved by both houses within six weeks after their reunion.

Critical Analysis of Articles 123 and 213

Nevertheless, the advantages of the power of ordinance are that they are needed for extraordinary measures since there are instances where it is unreasonable to anticipate the legislature to convene for deliberation and enactment of a law (Jain 2013). Food Security Ordinance 2011 is an illustration of this. The promulgation of this ordinance was justified on the grounds that there was an urgent need to provide food for the thronging millions of people because the Parliament was not in session to enact an act. However, there is a significant risk of this power being abused in a politically heated nation like India where there has been a history of the executive repeatedly usurping the legislative and judicial branches. In this article, we shall examine these scenarios.

This authority, in my opinion, could be abused by passing ordinances in not-so emergent situations solely to bypass the ordinary legislative process or for other covert purposes. In order to replace the current autonomous institution, International Centre for Alternative Dispute Resolution, the BJP administration enacted the New Delhi International Arbitration Centre Ordinance in February 2019. While the NDIAC would be presided over by judges chosen by the governments, this was led by the Chief Justice of India. The government would also receive all profits from the same. This was completed immediately following the 248th Parliament because the relevant bill was still pending when the session ended, which would have led it to lapse. The government stated that it would encourage “ease of doing business” as the rationale for immediate action. Such justification, in my opinion, is insufficient to formulate an ordinance that is only to be applied in real emergencies. Similar to this, there are numerous such instances where ordinances were passed despite the lack of any valid justification. Another such incident was the Electricity Regulatory Commissions Ordinance, which was published on April 25, 1998, one day before the decision of the ruling government to call the next session of Parliament.

Re-promulgating an ordinance several times is yet another way the power has been misused. I believe this scenario to be described as “Ordinance Raj,” in which the executive, unable to pass legislation using the required legislative process, usurps the role of the legislature by issuing ordinances. As a result, the ordinance remains in effect for a considerable period of time, during which the legislature, the authorized body, might easily pass any relevant laws. The Securities Laws (Amendment) Ordinance, 2014 was utilized in this way twice, which raises concerns about the extent of sovereignty as to the law-making of the parliament. The Indian Medical Council (Amendment) Ordinance, 2010, was likewise re-promulgated four times. Notwithstanding the SC ruling from 1986 condemning such behaviour, this apparently happened. Even harsher instances of misuse were observed in the case of Krishna Kumar Singh v. State of Bihar (2017), where the administration meticulously prorogued the Legislature within a time frame of six weeks and never laid many ordinances before the Legislature for its approval. Despite the court’s final ruling in D.C. Wadhwa v. State of Bihar, the practice persisted. The Supreme Court, on the other hand, referred to this as a “Constitutional fraud and a subversion of democratic legislative processes.”

Despite the fact that our constitution contains certain safeguards, two pitfalls can nevertheless be identified. First of all, despite the fact that re-promulgation has been ruled to be an unlawful practice, Krishna Kumar’s case has not received any comment on the DC Wadhwa judgment’s exceptions. The exceptions are not well-founded, and as Shubhankar Dam noted, they go against the basic tenet that an “emergent situation” is required for promulgation. Secondly, no timeframe has been established for presenting the ordinance to the appropriate legislature.

Recommendations and Conclusions

This, in my viewpoint, could be accomplished in a number of methods. For instance, the legislature could amend the constitution in accordance with Article 368 and establish necessary conditions for the drafting of ordinances. The executive can establish administrative rules as a matter of policy and may therefore exercise restraint. The Indian judiciary may also enact its own rules under Article 142 to prevent potential abuse of the law, just as it has in the past when no legislative or executive laws were identified and it issued rules with legal standing. Moreover, it is crucial that a suitable time frame be set by way of a Constitutional amendment during which the administration is required to submit the ordinance to the Legislature for review. Four weeks from the date of promulgation seems to be a reasonable deadline, as suggested by H. V. Kamath during the Constituent Assembly deliberations. In the words of H. V. Kamath, “Parliament can be summoned, I am sure, as it is done in many other countries, even within two weeks. You can summon an emergent session and four weeks is a liberal period of time within which to summon both Houses of Parliament.” The DC Wadhwa exceptions must also be eliminated, and the administration must be required to demonstrate worthwhile reason before passing an ordinance. The laws dealing with emergent situations that require quick response would be carried out in accordance with their actual intent if the suggested amendments were made.

Consequently, it has been noted that although Articles 123 and 213 both outline requirements that must be met in order to issue an ordinance, they are infrequently followed. It is evolving into a mechanism for a body that lacks the necessary qualifications to make parallel laws in an illegitimate manner. If this keeps happening, the democratic mechanisms that we have spent years enhancing and developing will be susceptible to criticism. In light of this, it was said in the Gujarat Mazdoor Sabha that the Constitution “was born from a transformative vision which aims to achieve social and economic democracy”. It is crucial that the executive execute its powers with the restraint envisioned by the Constitution’s architects if the executive branch is to endure – not just as a document but as a credible source of standards and values that govern our everyday lives.

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About The Author

Diksha Mittal is a bachelor of Law student at Jindal Global Law School, Sonipat, India. Her enthusiasm flows towards legal research and drafting and she would also like to write about various public policies and key areas of the law that she feels are significant for society. She has worked at a variety of different places to gain expertise in the legal field. Additionally, whether it is in corporate or commercial law, she is keen in working, learning, and expanding her horizons across numerous legal disciplines.