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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.
On June 3, 2011, the National Advisory Council (NAC) posted the draft of the National Food Security Bill on its website and has asked for public feed back on the Bill by June 12, 2011. Key Features of the Draft National Food Security Bill, 2011 - Every person shall have the right of access to sufficient and safe food either directly or by purchasing the food. - The central and state government shall share the financial cost of procuring, storing and distributing food grains to the population entitled to it. - There are special provisions for pregnant and lactating mothers, children in the 0-6 age group, destitute persons, homeless persons and disaster affected persons. The appropriate government shall take immediate steps to provide relief to persons living in starvation. - The state government shall provide all children upto class 8 freshly cooked meal in all schools run by local bodies and the government. It shall also provide mid-day meals to children who are admitted under the 25% quota for children belonging to disadvantaged groups in unaided private schools - Each household shall be categorised into priority and general in rural and urban areas. - Each individual in the priority group households shall be entitled to at least 7kg of grain every month at a maximum price of Rs 3/kg for rice, Rs 2/kg for wheat and Rs 1/kg for millets. - Each individual in the general group households shall be entitled to 4kg of grain per month at 50 per cent of the Minimum Support Price for paddy, wheat and millet. - The state government can exclude certain persons who fulfil the exclusion criteria in rural and urban areas. However, it has to cover at least 90% of the population in rural areas and 50% of the population in urban areas. - The Bill lays down norms for procurement, storage and distribution of food grains under the Public Distribution System. It also gives detailed norms for Fair Price Shops, ration cards, and monitoring the system. - It seeks to set up a National Food Commission and State Food Commission in each state. The Commission shall inquire into complaints on denial of entitlement, advise central and state governments and monitor the schemes. Each district shall have a District Grievance Redressal Officer. - The Bill includes penalties for dereliction of duty by public servants, which includes deduction of penalty from the salary of the public servant. - Any person deprived of his entitlement to food shall be entitled to compensation from the appropriate government. - The Gram Sabhas should conduct social audits of all schemes under this Act. The Back Story to the Bill The Right to Food Campaign In April 2001, the People’s Union for Civil Liberties (PUCL) Rajasthan had filed a writ petition in the Supreme Court against the Government of India, Food Corporation of India, and six state governments. The petition contended that the right to food was a fundamental right under “the right to life” provided by Article 21 of the Constitution of India. Although no final judgment has been given, the Supreme Court has issued several interim orders in the case. Among the most significant of theses is the conversion of eight centrally sponsored schemes into legal entitlements, including the Public Distribution System (PDS), Antyodaya Anna Yojana (AAY), National Programme of Nutritional Support to Primary Education, also known as “Mid-Day Meals scheme”, and Integrated Child Development Services (ICDS), among others. Some orders by the Court in the area of food security include:
On May 8, 2002, the Supreme Court appointed two Commissioners for the purpose of monitoring the implementation of the interim orders. The Commissioners have submitted a number of reports highlighting the issues of concern on the implementation of the interim orders and making detailed recommendations. Government Initiatives One of the key commitments made by both UPA I and UPA II was on food security whereby it proposed to enact a legislation that would entitle every BPL family in both rural and urban areas to 25 kg of rice or wheat per month at Rs 3 per kg. However, the Sonia Gandhi-led NAC has differences with the central government on the contours of the legislation. The basic issues on which there are divergent views include (a) coverage under the Bill; (b) method to be adopted to ensure food security; (c) the amount of food grain required; and (d) the impact on the food subsidy burden. On October 23, 2010, the NAC made certain recommendations on the National Food Security Bill. The Bill seeks to address nutritional deficiencies in the population. Some of its key recommendations are:
In response, the Prime Minister set up an Expert Committee under Dr C. Rangarajan to examine the Bill and make recommendations. The Rangarajan Committee submitted its report in January 2011. It stated that it would not be possible to implement the NAC recommendations because of lack of availability of food grains and huge subsidy implications. It was in favour of restricting entitlements of Rs 2/kg for wheat and Rs 3/kg for rice to households falling below the Tendulkar Committee poverty line plus 10 per cent of the BPL population. This is equivalent to 48 per cent of the rural and 28 per cent of the urban population, which is about the same as the NAC categorisation for priority households. The NAC however criticised the Rangarajan Committee’s stand and proceeded with the task of drafting an appropriate legislation. It finally posted the draft of the National Food Security Bill on its website and has asked for public feedback. Divergent Perspectives The draft has been critiqued by various experts. A group of distinguished economists wrote an open letter to Mrs Sonia Gandhi opposing the NAC’s draft on the grounds that it legalises the PDS even though there is a large body of evidence of the inefficiency of the system (see Wadhwa Committee reports and Planning Commission report). The economists contended that in addition to reforming the PDS, other alternate models of subsidy delivery should be examined such as direct cash transfers or food stamps. The system of direct cash transfer through food coupons was also outlined in the Economic Survey of 2009-10. It stated that the system would be less prone to corruption since it would cut down government’s involvement in procuring, storing and distributing food grains. However, there are divergent views on direct cash transfer too. Some experts such as the economist and member of NAC, Prof Jean Dreze contend that food entitlement is better because it is inflation proof and it gets consumed more wisely than cash which can be easily misspent. Others are of the view that cash transfer has the potential for providing economic and food security to the poor. The ball is now in the government’s court. According to news reports, the government may finalise the Bill soon and introduce it in the forthcoming monsoon session of Parliament.
