Recently, the President repromulgated the Securities Laws (Amendment) Ordinance, 2014, which expands the Securities and Exchange Board Act’s (SEBI) powers related to search and seizure and permits SEBI to enter into consent settlements.  The President also promulgated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, which establishes special courts for the trial of offences against members of Scheduled Castes and Scheduled Tribes.  With the promulgation of these two Ordinances, a total of 25 Ordinances have been promulgated during the term of the 15th Lok Sabha so far. Ordinances are temporary laws which can be issued by the President when Parliament is not in session.  Ordinances are issued by the President based on the advice of the Union Cabinet. The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session. Often though Ordinances are used by governments to pass legislation which is currently pending in Parliament, as was the case with the Food Security Ordinance last year. Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident. Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been promulgated. The graph below gives a breakdown of the number of Bills passed by each Lok Sabha since 1952, as well as the number of Ordinances promulgated during each Lok Sabha. Ordinances Ordinance Making Power of the President The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.  Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’. Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses. History of Ordinances Ordinances were incorporated into the Constitution from Section 42 and 43 of the Government of India Act, 1935, which authorised the then Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’. Interestingly, most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long. Ordinances became part of the Indian Constitution after much debate and discussion. Some Members of the Constituent Assembly emphasised that the Ordinance making power of the President was extraordinary and issuing of Ordinances could be interpreted as against constitutional morality. Some Members felt that Ordinances were a hindrance to personal freedom and a relic of foreign rule. Others argued that Ordinances should be left as a provision to be used only in the case of emergencies, for example, in the breakdown of State machinery. As a safeguard, Members argued that the provision that a session of Parliament must be held within 6 months of passing an Ordinance be added. Repromulgation of Ordinances Ordinances are only temporary laws as they must be approved by Parliament within six weeks of reassembling or they shall cease to operate. However, governments have promulgated some ordinances multiple times. For example, The Securities Laws (Amendment) Ordinance, 2014 was recently repromulgated for the third time during the term of the 15th Lok Sabha. Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body. In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, where the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate Ordinances, the Constitution Bench headed by Chief Justice P.N. Bhagwati observed: “The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be "perverted to serve political ends". It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.” Repromulgation

Ordinances by governments
Thanks to Vinayak Rajesekhar for helping with research on this blog post.

In the last few years, several states have enacted laws to curb cheating in examinations, especially those for recruitment in public service commissions.   According to news reports, incidents of cheating and paper leaks have occurred on several occasions in Uttarakhand, including during the panchayat development officer exams in 2016, and the Uttarakhand Subordinate Services Selection Commission exams in 2021.  The Uttarakhand Public Service Commission papers were also leaked in January 2023.  The most recent cheating incidents led to protests and unrest in Uttarakhand.   Following this, on February 11, 2023, the state promulgated an Ordinance to bar and penalise the use of unfair means in public examinations.  The Uttarakhand Assembly passed the Bill replacing the Ordinance in March 2023.  There have been multiple reports of candidates being arrested and debarred for cheating in public examinations for posts such as forest guard and secretariat guard after the ordinance’s introduction.  Similar instances of cheating have also been noted in other states.   As per news reports, since 2015, Gujarat has not been able to hold a single recruitment exam without reported paper leaks.  In February 2023, the Gujarat Assembly also passed a law to penalise cheating in public examinations.  Other states such as Rajasthan (Act passed in 2022), Uttar Pradesh (Act passed in 1998) and Andhra Pradesh (Act passed in 1997) also have similar laws.  In this blog, we compare anti-cheating laws across some states (see Table 1), and discuss some issues to consider.

Typical provisions of anti-cheating laws

Anti-cheating laws across states generally contain provisions that penalise the use of unfair means by examinees and other groups in public examinations such as those conducted by state public sector commission examinations and higher secondary education boards.  Broadly, unfair means is defined to include the use of unauthorised help and the unauthorised use of written material by candidates.  These laws also prohibit individuals responsible for conducting examinations from disclosing any information they acquire in this role.  The more recent laws, such as the Gujarat, Uttarakhand, and Rajasthan ones, also include the impersonation of candidates and the leaking of exam papers within the definition of unfair means.  Uttarakhand, Gujarat, Rajasthan, Uttar Pradesh, Chhattisgarh, and Andhra Pradesh prohibit the use of electronic aids.  Maximum prison sentences for using such unfair means range from three months in Uttar Pradesh, to seven years in Andhra Pradesh. 

Issues to consider

The Gujarat and Uttarakhand anti-cheating Acts have relatively stringent provisions for cheating.  The Uttarakhand Act has a fixed 3-year prison sentence for examinees caught cheating or using unfair means (for the first offence).  Since the Act does not distinguish between the different types of unfair means used, an examinee could serve a sentence disproportionate to the offence committed.  In most other states, the maximum imprisonment term for such offences is three years.   Andhra Pradesh has a minimum imprisonment term of three years.  However, all these states allow for a range with respect to the penalty, that is, the judge can decide on the imprisonment term (within the specified limits) depending on the manner of cheating and the implications of such cheating.  Table 1 below compares the penalties for certain offences across eight states.

The Uttarakhand Act has a provision that debars the examinee from state competitive examinations for two to five years upon the filing of the chargesheet, rather than upon conviction.  Thus, an examinee could be deprived of giving the examination even if they were innocent but being prosecuted under the law.  This could compromise the presumption of innocence for accused candidates.  The Gujarat and Rajasthan laws also debar candidates from sitting in specified examinations for two years, but only upon conviction. 

These laws also vary in scope across states.  In Uttarakhand and Rajasthan, the laws only apply to competitive examinations for recruitment in a state department (such as a Public Commission).   In the other six states examined, these laws also apply to examinations held by educational institutions for granting educational qualifications such as diplomas and degrees.  For example, in Gujarat, exams conducted by the Gujarat Secondary and Higher Secondary Education Board are also covered under the Gujarat Public Examination (Prevention of Unfair Means) Act, 2023.   The question is whether it is appropriate to have similar punishments for exams in educational institutions and exams for recruitment in government jobs, given the difference in stakes between them.

Sources: The Rajasthan Public Examination (Measures for Prevention of Unfair Means in Recruitment) Act, 2022; the Uttar Pradesh Public Examinations (Prevention of Unfair Means) Act, 1998; the Chhattisgarh Public Examinations (Prevention of Unfair Means) Act, 2008; the Orissa Conduct of Examinations Act, 1988; the Andhra Pradesh Public Examinations (Prevention of Malpractices and Unfair means) Act, 1997; the Jharkhand Conduct of Examinations Act, 2001, the Uttarakhand Competitive Examination (Measures for Prevention and Prevention of Unfair Means in Recruitment) Act, 2023, the Gujarat Public Examination (Prevention of Unfair Methods) Act, 2023; PRS.