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Power to promulgate/re-promulgate ordinances

GS Paper 2

 Syllabus: Structure, Organization and Functioning of the Executive

 

Source: IE

 

Context: To overturn a unanimous decision of the SC’s Constitution Bench [which gave the Delhi govt control over services in the NCT], the central government has issued an Ordinance.

 

About the Ordinance:

  • It gave the Lieutenant Governor of Delhi power over services.
  • It established a National Capital Civil Service Authority.
    • The authority will comprise the CM and two senior IAS officials.
    • It would decide matters by majority votes – which may lead to a situation in which the view of the elected CM could be overruled.
Ordinance
MeaningIt is a law enacted by the Executive (President in the case of Union and Governor in the case of State) to meet extraordinary/urgent circumstances.
Extraordinary/urgent circumstancesArticle 123 of the Indian Constitution empowers the President [Article 213 – Governor] to promulgate Ordinances during recess of Parliament.
Article 123If 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 Ordinances.
Real authority that decides to bring the OrdinanceUnder Article 74, the President acts on the advice of the Council of Ministers. Hence, it is in effect the government that decides to bring the Ordinance.
EffectAn Ordinance shall have the same force and effect as an Act of Parliament. However, the government is required to bring an Ordinance before Parliament for ratification.
LifeIf the government  fails to get an Ordinance ratified by the Parliament, it will lapse at the expiration of 6 weeks from the reassembly of Parliament. Maximum life of an Ordinance = 6 months (recess) + 6 weeks

The Ordinance may lapse earlier – if the President withdraws it or if both Houses pass resolutions disapproving it (imply that the government has lost majority.)

CriticismAs lawmaking is a legislative function, Ordinance power is provided to meet urgent situations.

However, the governments adopt the Ordinance route to bypass the legislature.

Repromulgation of an Ordinance, which extends life of an Ordinance, allows the executive to further seize legislative power.

SC verdicts on the issueRC Cooper Case 1970: If an Ordinance is issued solely to bypass the Parliament, the President’s decision to promulgate the Ordinance can be challenged.

 D C Wadhwa v. State of Bihar 1986: If the Government ignores the legislature and repromulgate an Ordinance, it would be a colourable exercise of power.

Krishna Kumar Singh v. State of Bihar 2017: Reiterated that the Governor’s power to issue an Ordinance is in the nature of an emergency power. Repeated re-promulgations without bringing the Ordinance to the legislature would be unconstitutional.

 

Insta Links:

The ordinance route is bad, repromulgation worse

 

Mains Links:

Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed? (UPSC 2015)