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In light of the decision of the union cabinet to promulgate an Ordinance to uphold provisions of the Representation of People Act, 1951, this blog examines the Ordinance making power of the Executive in India. The Ordinance allows legislators (Members of Parliament and Members of Legislative Assemblies) to retain membership of the legislature even after conviction, if (a) an appeal against the conviction is filed before a court within 90 days and (b) the appeal is stayed by the court. However, the Ordinance will only be promulgated after it receives the assent of the President. I. Separation of powers between the Legislature, Executive and Judiciary In India, the central and state legislatures are responsible for law making, the central and state governments are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws. However, 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. II. Ordinance making powers of the 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.[i] An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists. Thus, the following limitations exist with regard to the Ordinance making power of the executive: i. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session. ii. Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’[ii]. iii. Parliamentary approval during session: 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. Figure 1 shows the number of Ordinances that have been promulgated in India since 1990. The largest number of Ordinances was promulgated in 1993, and there has been a decline in the number of Ordinance promulgated since then. However, the past year has seen a rise in the number of Ordinances promulgated. Figure 1: Number of national Ordinances promulgated in India since 1990 
Source: Ministry of Law and Justice; Agnihotri, VK (2009) ‘The Ordinance: Legislation by the Executive in India when the Parliament is not in Session’; PRS Legislative Research III. Ordinance making powers of the Governor Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session. The powers of the President and the Governor are broadly comparable with respect to Ordinance making. However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill.[iii] IV. Key debates relating to the Ordinance making powers of the Executive There has been significant debate surrounding the Ordinance making power of the President (and Governor). Constitutionally, important issues that have been raised include judicial review of the Ordinance making powers of the executive; the necessity for ‘immediate action’ while promulgating an Ordinance; and the granting of Ordinance making powers to the executive, given the principle of separation of powers. Table 1 provides a brief historical overview of the manner in which the debate on the Ordinance making powers of the executive has evolved in India post independence. Table 1: Key debates on the President's Ordinance making power
| Year |
Legislative development |
Key arguments |
| 1970 | RC Cooper vs. Union of India | In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 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. |
| 1975 | 38th Constitutional Amendment Act | 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. |
| 1978 | 44th Constitutional Amendment Act | Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance. |
| 1980 | AK Roy vs. Union of India | In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, 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. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”. |
| 1985 | T Venkata Reddy vs. State of Andhra Pradesh | In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 which abolished certain village level posts, 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. |
| 1987 | DC Wadhwa vs. State of Bihar | It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature. Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances. |
Source: Basu, DD (2010) Introduction to the Constitution of India; Singh, Mahendra P. (2008) VN Shukla's Constitution of India; PRS Legislative Research
This year, the following 9 Ordinances have been promulgated:
Three of these Ordinances have been re-promulgated, i.e., a second Ordinance has been promulgated to replace an existing one. This seems to be in violation of the Supreme Court’s decision in DC Wadhwa vs. State of Bihar.
Notes: [i] With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers. While the Ordinance is promulgated in the name of the President and constitutionally to his satisfaction, in fact, it is promulgated on the advice of the Council of Ministers.
[ii] Article 123, Clause (1)
[iii] (a) if a Bill containing the same provisions would have required the previous sanction of the President for introduction into the legislature; (b) if the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; and (c) if an Act of the legislature containing the same provisions would have been invalid unless it received the assent of the President.
Earlier this month, guidelines for the Swachh Bharat Mission (Gramin) were released by the Ministry of Drinking Water and Sanitation. Key features of the Swachh Bharat Mission (Gramin), as outlined in the guidelines, are detailed below. In addition, a brief overview of sanitation levels in the country is provided, along with major schemes of the central government to improve rural sanitation. The Swachh Bharat Mission, launched in October 2014, consists of two sub-missions – the Swachh Bharat Mission (Gramin) (SBM-G), which will be implemented in rural areas, and the Swachh Bharat Mission (Urban), which will be implemented in urban areas. SBM-G seeks to eliminate open defecation in rural areas by 2019 through improving access to sanitation. It also seeks to generate awareness to motivate communities to adopt sustainable sanitation practices, and encourage the use of appropriate technologies for sanitation. I. Context Data from the last three Census’, in Table 1, shows that while there has been some improvement in the number of households with toilets; this number remains low in the country, especially in rural areas. Table 1: Percentage of households with toilets (national)
| Year | Rural | Urban | Total |
| 1991 | 9% | 64% | 24% |
| 2001 | 22% | 74% | 36% |
| 2011 | 31% | 81% | 47% |
In addition, there is significant variation across states in terms of availability of household toilets in rural areas, as shown in Table 2. Table 2 also shows the change in percentage of rural households with toilets from 2001 to 2011. It is evident that the pace of this change has varied across states over the decade. Table 2: Percentage of rural households with toilets
| State |
2001 |
2011 |
% Change |
| Andhra Pradesh |
18 |
32 |
14 |
| Arunachal Pradesh |
47 |
53 |
5 |
| Assam |
60 |
60 |
0 |
| Bihar |
14 |
18 |
4 |
| Chhattisgarh |
5 |
15 |
9 |
| Goa |
48 |
71 |
23 |
| Gujarat |
22 |
33 |
11 |
| Haryana |
29 |
56 |
27 |
| Himachal Pradesh |
28 |
67 |
39 |
| Jammu and Kashmir |
42 |
39 |
-3 |
| Jharkhand |
7 |
8 |
1 |
| Karnataka |
17 |
28 |
11 |
| Kerala |
81 |
93 |
12 |
| Madhya Pradesh |
9 |
13 |
4 |
| Maharashtra |
18 |
38 |
20 |
| Manipur |
78 |
86 |
9 |
| Meghalaya |
40 |
54 |
14 |
| Mizoram |
80 |
85 |
5 |
| Nagaland |
65 |
69 |
5 |
| Odisha |
8 |
14 |
6 |
| Punjab |
41 |
70 |
30 |
| Rajasthan |
15 |
20 |
5 |
| Sikkim |
59 |
84 |
25 |
| Tamil Nadu |
14 |
23 |
9 |
| Tripura |
78 |
82 |
4 |
| Uttar Pradesh |
19 |
22 |
3 |
| Uttarakhand |
32 |
54 |
23 |
| West Bengal |
27 |
47 |
20 |
| All India |
22 |
31 |
9 |
II. Major schemes of the central government to improve rural sanitation The central government has been implementing schemes to improve access to sanitation in rural areas from the Ist Five Year Plan (1951-56) onwards. Major schemes of the central government dealing with rural sanitation are outlined below.
| Central Rural Sanitation Programme (1986): The Central Rural Sanitation Programme was one of the first schemes of the central government which focussed solely on rural sanitation. The programme sought to construct household toilets, construct sanitary complexes for women, establish sanitary marts, and ensure solid and liquid waste management. |
| Total Sanitation Campaign (1999): The Total Sanitation Campaign was launched in 1999 with a greater focus on Information, Education and Communication (IEC) activities in order to make the creation of sanitation facilities demand driven rather than supply driven. Key components of the Total Sanitation Campaign included: (i) financial assistance to rural families below the poverty line for the construction of household toilets, (ii) construction of community sanitary complexes, (iii) construction of toilets in government schools and aganwadis, (iv) funds for IEC activities, (v) assistance to rural sanitary marts, and (vi) solid and liquid waste management. |
| Nirmal Bharat Abhiyan (2012): In 2012, the Total Sanitation Campaign was replaced by the Nirmal Bharat Abhiyan (NBA), which also focused on the previous elements. According to the Ministry of Drinking Water and Sanitation, the key shifts in NBA were: (i) a greater focus on coverage for the whole community instead of a focus on individual houses, (ii) the inclusion of certain households which were above the poverty line, and (iii) more funds for IEC activities, with 15% of funds at the district level earmarked for IEC. |
| Swachh Bharat Mission (Gramin) (2014): Earlier this year, in October, NBA was replaced by Swachh Bharat Mission (Gramin) (SBM-G) which is a sub-mission under Swachh Bharat Mission. SBM-G also includes the key components of the earlier sanitation schemes such as the funding for the construction of individual household toilets, construction of community sanitary complexes, waste management, and IEC. Key features of SBM-G, and major departures from earlier sanitation schemes, are outlined in the next section. |
III. Guidelines for Swachh Bharat Mission (Gramin) The guidelines for SBM-G, released earlier this month, outline the strategy to be adopted for its implementation, funding, and monitoring. Objectives: Key objectives of SBM-G include: (i) improving the quality of life in rural areas through promoting cleanliness and eliminating open defecation by 2019, (ii) motivating communities and panchayati raj institutions to adopt sustainable sanitation practices, (iii) encouraging appropriate technologies for sustainable sanitation, and (iv) developing community managed solid and liquid waste management systems. Institutional framework: While NBA had a four tier implementation mechanism at the state, district, village, and block level, an additional tier has been added for SBM-G, at the national level. Thus, the implementation mechanisms at the five levels will consist of: (i) National Swachh Bharat Mission (Gramin), (ii) State Swachh Bharat Mission (Gramin), (iii) District Swachh Bharat Mission (Gramin), (iv) Block Programme Management Unit, and (v) Gram Panchayat/Village and Water Sanitation Committee. At the Gram Panchayat level, Swachhta Doots may be hired to assist with activities such as identification of beneficiaries, IEC, and maintenance of records. Planning: As was done under NBA, each state must prepare an Annual State Implementation Plan. Gram Panchayats must prepare implementation plans, which will be consolidated into Block Implementation Plans. These Block Implementation Plans will further be consolidated into District Implementation Plans. Finally, District Implementation Plans will be consolidated in a State Implementation Plan by the State Swachh Bharat Mission (Gramin). A Plan Approval Committee in Ministry of Drinking Water and Sanitation will review the State Implementation Plans. The final State Implementation Plan will be prepared by states based on the allocation of funds, and then approved by National Scheme Sanctioning Committee of the Ministry. Funding: Funding for SBM-G will be through budgetary allocations of the central and state governments, the Swachh Bharat Kosh, and multilateral agencies. The Swachh Bharat Kosh has been established to collect funds from non-governmental sources. Table 3, below, details the fund sharing pattern for SBM-G between the central and state government, as provided for in the SBM-G guidelines. Table 3: Funding for SBM-G across components
| Component | Centre | State | Beneficiary | Amount as a % of SBM-G outlay |
| IEC, start-up activities, etc | 75% | 25% | - | 8% |
| Revolving fund | 80% | 20% | - | Up to 5% |
| Construction of household toilets | 75%(Rs 9000)90% for J&K, NE states, special category states | 25%(Rs 3000)10% for J&K, NE states, special category states | -- | Amount required for full coverage |
| Community sanitary complexes | 60% | 30% | 10% | Amount required for full coverage |
| Solid/Liquid Waste Management | 75% | 25% | - | Amount required within limits permitted |
| Administrative charges | 75% | 25% | - | Up to 2% of the project cost |
One of the changes from NBA, in terms of funding, is that funds for IEC will be up to 8% of the total outlay under SBM-G, as opposed to up to 15% (calculated at the district level) under NBA. Secondly, the amount provided for the construction of household toilets has increased from Rs 10,000 to Rs 12,000. Thirdly, while earlier funding for household toilets was partly through NBA and partly though the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), the provision for MGNREGS funding has been done away with under SBM-G. This implies that the central government’s share will be met entirely through SBM-G. Implementation: The key components of the implementation of SBM-G will include: (i) start up activities including preparation of state plans, (ii) IEC activities, (iii) capacity building of functionaries, (iv) construction of household toilets, (v) construction of community sanitary complexes, (vi) a revolving fund at the district level to assist Self Help Groups and others in providing cheap finance to their members (vii) funds for rural sanitary marts, where materials for the construction of toilets, etc., may be purchased, and (viii) funds for solid and liquid waste management. Under SBM-G, construction of toilets in government schools and aganwadis will be done by the Ministry of Human Resource Development and Ministry of Women and Child Development, respectively. Previously, the Ministry of Drinking Water and Sanitation was responsible for this. Monitoring: Swachh Bharat Missions (Gramin) at the national, state, and district levels will each have monitoring units. Annual monitoring will be done at the national level by third party independent agencies. In addition, concurrent monitoring will be done, ideally at the community level, through the use of Information and Communications Technology. More information on SBM-G is available in the SBM-G guidelines, here.
