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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.
Criminal laws in India by way of “sanctions” allow for protective discrimination in favour of public officials.[1] Under various laws, sanctions are required to investigate and prosecute public officials. Over the past 15 years these provisions of law have been revisited by the judiciary and the legislature. Recently the Supreme Court in the Subramanian Swamy Case has suggested the concept of a deemed sanction. We look at the history of the requirement of sanction under criminal laws. Requirement of sanction to investigate certain public servants of the union government was introduced through a government notification[2]. The Criminal Procedure Code 1973 and the Prevention of Corruption Act 1988 provide that to prosecute a public servant, permission or sanction has to be secured from the government (central or state) for which the official works. Arguments that are often advanced in favour of such sanctions are that these ensure that (a) frivolous and vexatious cases are not filed, (b) public officials are not harassed, and (c) the efficacy of administrative machinery is not tampered with. Further, the requirement of sanction to investigate was also defended by the government before the Supreme Court in certain cases. In Vineet Narain vs. Union of India 1997[3], the government had argued that the CBI may not have the requisite expertise to determine whether the evidence was sufficient for filing a prima facie case. It was also argued that the Act instituting the CBI, Delhi Special Police Establishment Act 1946 (DSPE Act), granted the power of superintendence, and therefore direction, of the CBI to the central government. The Court in this case struck down the requirement of sanction to investigate. It held that “supervision” by the government could not extend to control over CBI’s investigations. As for prosecution, the Court affixed a time frame of three months to grant sanction. However, there was no clarity on what was to be done if sanction was not granted within such time. Following that judgment, the DSPE Act was amended in 2003, specifically requiring the CBI to secure a sanction before it investigated certain public servants. More recently, the Lokpal and Lokayukta Bill, 2011 that is pending before the Rajya Sabha, removed the requirement of sanction to investigate and prosecute public servants in relation to corruption. Recently, Mr. Subramanian Swamy approached the Supreme Court for directions on his request for sanction to prosecute Mr. A Raja in relation to the 2G Scam. As per the Supreme Court, judgment in Subramanian Swamy vs. Dr. Manmohan Singh & Anr, Mr. Swamy’s request was pending with the department for over 16 months. The Supreme Court held that denial of a timely decision on grant of sanction is a violation of due process of law (Right to equality before law read with Right to life and personal liberty). The Court reiterated the three month time frame for granting sanctions. It suggested that Parliament consider that in case the decision is not taken within three months, sanction would be deemed to be granted. The prosecution would then be responsible for filing the charge sheet within 15 days of the expiry of this period.
[1] Subramanian Swamy vs. Dr. Manmohan Singh & Anr. Civil Appeal No. 1193 of 2012 dated January 31, 2012
[2] Single Directive, No. 4.7.3
[3] AIR 1998 SC 889
