The central government has repromulgated the ordinance that establishes a commission for air quality management in the National Capital Region, or the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020 (https://bit.ly/3duZmHW). This raises questions about the practice of issuing ordinances to make law, and that of re-issuing ordinances without getting them ratified by Parliament.
The Constitution permits the central and State governments to make laws when Parliament (or the State Legislature) is not in session. As law making is a legislative function, this power is provided for urgent requirements, and the law thus made has an automatic expiry date. The Constitution states that the ordinance will lapse at the end of six weeks from the time Parliament (or the State Legislature) next meets.
In the Constituent Assembly, while there was a discussion on how long the ordinance could remain valid (with some members asking for it to lapse within four weeks of promulgation as that would be sufficient time to call an urgent session of Parliament), no one raised the possibility of an ordinance to be re-promulgated. Perhaps such an eventuality was beyond their imagination.
What the data show
Whereas an ordinance was originally conceived as an emergency provision, it was used fairly regularly. In the 1950s, central ordinances were issued at an average of 7.1 per year. The number peaked in the 1990s at 19.6 per year, and declined to 7.9 per year in the 2010s. The last couple of years has seen a spike, 16 in 2019, 15 in 2020, and four till now this year (https://bit.ly/3go9YKf).
State governments also used this provision very often. The issue was brought up in the Supreme Court through a writ petition by D.C. Wadhwa, a professor of economics, who discovered this fact when he was researching land tenures. He found out that Bihar had issued 256 ordinances between 1967 and 1981, of which 69 were repromulgated several times, including 11 which were kept alive for more than 10 years.
A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme. It said, “it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Executive.
Such a stratagem would be repugnant to the constitutional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislature (https://bit.ly/3mXEaxc).” Interestingly, the Court pointed out that there was not a single instance of the President (i.e., the central government) repromulgating an ordinance.
The judgment did not stop the practice. Instead, the Centre also started to follow the lead of Bihar. For example, in 2013 and 2014, the Securities Laws (Amendment) ordinance was promulgated three times. Similarly, an ordinance to amend the Land Acquisition Act was issued in December 2014, and repromulgated twice – in April and May 2015 (https://bit.ly/32svBkM).
An unconstitutional practice
The matter came up again in the Supreme Court, and in January 2017, a seven-judge Constitution Bench declared this practice to be unconstitutional. The judgment concluded that, “Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes (https://bit.ly/3sq95Du).”
Even this judgment has been ignored. The Indian Medical Council Amendment Ordinance was issued in September 2018, and reissued in January 2019, as it was passed by only one House of Parliament in the intervening session. The current case of the Commission for Air Quality Management is even more egregious. While the ordinance of October 2020 was laid in Parliament on the first day of the recent Budget Session, a Bill to replace it was not introduced. However, the ordinance has been repromulgated now (https://bit.ly/32uEiuC).
States have also been using the ordinance route to enact laws. For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21. Kerala has also repromulgated ordinances: one ordinance to set up a Kerala University of Digital Sciences, Innovation and Technology has been promulgated five times between January 2020 and February 2021 (https://bit.ly/2Q6zglJ).
Onus on legislatures, courts
The legal position is clear, and has been elucidated by constitution Benches of the Supreme Court. Ordinances are to tackle exigencies when the legislature is not in session, and expire at the end of six weeks of the next meeting of the legislature. This time period is given for the legislature to decide whether such a law is warranted. Repromulgation is not permitted as that would be a usurpation of legislative power by the executive. As governments, both at the Centre and States, are violating this principle, the legislatures and the courts should check the practice. That is what separation of powers and the concept of checks and balances means. By not checking this practice, the other two organs are also abdicating their responsibility to the Constitution.
M.R. Madhavan is President of PRS Legislative Research, New Delhi