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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.
The last few days have seen repeated disruptions in Parliament. In an Opinion Editorial published in the Indian Express, Chakshu Roy of PRS Legislative Research discusses the impact of the current disruptions on Parliament. His analysis points to how disruptions are an opportunity lost to hold the government accountable and to deliberate on significant legislative and policy issues. The second half of the budget session commenced last week with hardly any business transacted due to disruptions on different issues. This is not new. The 15th Lok Sabha has seen entire parliamentary sessions lost without any work being done. As it nears the end of its term, Parliament's productive time stands at 70 per cent, which is significantly lower than that of previous Lok Sabhas. As disruptions in Parliament have become routine, public reaction to such disruptions has also become predictable. Figures depicting the quantum of taxpayers' money lost every hour that Parliament does not function start doing the rounds, and the cry for docking the salary of disrupting members of Parliament becomes louder. What does not get adequate attention is the opportunity lost for holding the government accountable and deliberating on important legislative and policy issues. MPs are required to keep the government in check and oversee its functioning. One of the ways in which they do so is by asking ministers questions about the work done by their ministries. Ministers respond to such questions during the first hour of Parliament, which is known as question hour. During this hour, 20 questions are slotted for oral responses by ministers. Based on the response, MPs can cross-question and corner the minister by asking supplementary questions. On certain occasions, they are also able to extract assurances from the minister to take action on certain issues. When question hour is disrupted, not only are these opportunities lost, it also leads to ineffective scrutiny of the work done by the various ministries of the government. Last week, some of the questions that could not be orally answered related to four-laning of highways, performance of public sector steel companies, supply of food grains for welfare schemes, and generic versions of cancer drugs. In 2012, out of the 146 hours allocated for question hour in both Houses of Parliament, roughly only 57 hours were utilised. Since the beginning of the 15th Lok Sabha in 2009, approximately 43 per cent of the allocated time has been spent on question hour. When Parliament is disrupted regularly, its capacity to make laws is affected. Excluding routine financial legislation, since 2009, the government had planned to introduce 390 bills. So far, it has been able to introduce only 187 of them. It had also planned to have 365 bills scrutinised and passed by Parliament. So far, 96 of them have received parliamentary approval. Disruptions in Parliament also eat into the time available for discussing a bill in the house. In Lok Sabha, roughly 35 per cent of bills were passed with an hour or less of debate, a case being the sexual harassment bill, which was passed by Lok Sabha in September of last year in 16 minutes. Some would argue that since parliamentary committees scrutinise most bills in detail, there is no harm done if the bills are not debated in the House. However scrutiny of a bill behind closed doors is hardly a substitute for spirited debates on the merits and demerits of a bill on the floor of the House. Currently there are 115 bills awaiting parliamentary scrutiny and approval. Important social and economic legislation is currently pending before Parliament. The food security bill, the land acquisition bill, the companies and the goods and services tax bill are just a few of them. Out of the laundry list of pending bills, some are political and may be stuck in Parliament till consensus around them can be built. But there are a number of bills that are administrative in nature, and have no political undercurrents and are possibly not coming up for discussion because of the limited time that is available for legislative debate on account of frequent disruptions. In September 1997, to celebrate the golden jubilee of the country's Independence, a special session of Parliament was convened. At this special session, MPs had resolved to preserve and enhance the dignity of Parliament by adhering to the rules of procedure of Parliament relating to the orderly conduct of parliamentary proceedings. Last year, Parliament completed 60 years since its first sitting. To mark the occasion, another special session of both Houses was convened, where MPs had resolved to uphold the dignity, sanctity and supremacy of Parliament. Ensuring that the proceedings of both Houses run smoothly so that Parliament can discharge its responsibility effectively is the best way of ensuring its supremacy. The question that needs to be asked is whether our members of Parliament are ready to stand by the resolutions that they voluntarily adopted.
