INTRODUCTION
India follows a parliamentary democracy which ensures separation of powers to prevent one branch of the government from abusing or controlling the other branch although we don’t follow separation of power in a strict sense as held by the Supreme Court in “Ram Jawayya Kapur VS State of Punjab”[1] and other cases it’s still crucial to avoid concentration of power in the hands of one organ and for their efficient working. Organs within their sphere are independent and can’t be interfered with and in some way or the other each organ checks the other which also clearly means that the executive cannot pass legislation on the task which falls within the ambit of legislatures. However, Article 123(1)[2] of The Indian Constitution states grants power to the president to promulgate ordinances however there is a condition that needs to be taken care of that is least one house of the parliament is not in session and the president feels that there is an emergency that needs immediate action similar provisions exist for governors under Article 213[3] these ordinances are treated the same way as a law passed by the legislature what makes it different from an act or a bill is that these ordinances are temporary laws which stands invalid at the end of six weeks from the time parliament meets if in the case before that period of dissolution the legislature does not disapprove the ordinance or it gets converted into a law, again several ordinances have been issued from time to time the recent being Banking Regulation (Amendment ) regulation ordinance and the three contentious farm ordinances[4]
Ambiguousness Of the Article
Clearly, the law doesn’t specifically define the maximum number of times an ordinance can be issued which gives away arbitrary power to the executive to use it as their upper hand[5]
Article 123[6] mentions that the life of an ordinance is just six months and six weeks unless otherwise as mentioned, therefore we predominantly need to remember that constitution does not provide for an extension to the life of the ordinance, however, there have been instances of Government re promulgating ordinances which extend its validity and confiscate legislative powers.
Instances Of Misuse
One such instance is when President promulgated the “Securities Laws (Amendment) Ordinance, 2014”, which gives powers to SEBI to search and seizure and permits SEBI to enter into consent settlements[7], during the 15th Lok Sabha session it was re-promulgated for the Third time Mr. Mukherjee had previously promulgated the Ordinance modifying the Securities Laws on July 18, 2013, after the Cabinet approved altering the Securities and exchange board Act, 1992 to give the stock markets watchdog greater powers. On September 16, 2013, it was re-promulgated again. The finance minister took the approval of EC and cabinet ministers[8] Another instance could be “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014” (LARR Ordinance 2014) introduced by the present government in 2014 which amended the “Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act 2013” it was passed under the circumstances that the parliament was not under a session and the president deemed it fit to pass it as an immediate action the new ordinance bought some other revisions to the preceding 2013 legislation In 2015, the ordinance was put up in the Lok Sabha to be passed as an act however the government was unable to convert the Bill into an Act during the first half of the budget session in Parliament due to a split, united opposition in the Rajya Sabha. When the budget session was reconvened, the BJP government re-promulgated the ordinance to break the impasse and guarantee that the LARR Bill 2015 becomes a law[9].
Supreme Courts Stand
When we consider the constitutionality of such ordinances we have to look into some judicial pronouncements passed in relation to this by the Supreme court one such case is “Krishna Kumar Singh vs State of Bihar” [10]the Facts of the case commence, After passing of the “Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance in 1989” what followed was a succession of ordinances passed one after another without presenting it before the state legislature or making a law out of it as result the employees and teachers resort to filling a petition dismissal of which by the High court was forwarded as an appeal to the Supreme court by the employees for salary and other emoluments. In this case, the principle is whether Article 213[11] of the Constitution confers a mandatory obligation to the executive to present an ordinance before the Legislature and Weather re-promulgating an Ordinance is permissible as per the Constitution. In the 2017 judgment judges believed that the validity of the first three Ordinances passed by the Governor of the State of Bihar should be presumed. As a consequence, even if these three Ordinances were repealed, employees would be entitled to the benefits. It was also stated that “Repromulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative procedures,” and that “putting an Ordinance before Parliament or the state legislature is a mandatory constitutional responsibility placed upon the executive.” it was further held in the case that “The satisfaction of the President under Article 123[12] and the Governor under Article 213[13] is not immune from judicial review,”
CONCLUSION
Above instances support the argument that often these ordinance-making power given to the executive violates the spirit of democracy and the fundamental structure of the constitution the power that should have been used during emergency cases is used as a prerogative, it abuses the constitutional provisions re promulgating the ordinance cannot hide the intent and real objective of the leaders to pass them by repealing the earlier ordinances and passing such ordinances which are exactly of the same nature and with same legislative entries the government breaches the basic structure of the constitution of which Separation of power is an ordeal as held by the Supreme court in the “Kesavananda Bharati VS UOI”[14] .
Author(s) Name: Aditi Yadav (National Law University, Odisha)
References:
[1] Ram Jawayya Kapur vs State of Bihar 1955, AIR 549 [12].
[2] Constitution of India, 1950, art 123 (1)
[3] Constitution of India, 1950, art 213
[4]The Wire Staff, ‘Modi Govt, with 76 Ordinances in 7 Years, Surpasses UPA’s 10-Year Record of 61’ (The Wire, 13th April 2021) <https://thewire.in/government/modi-govt-with-76-ordinances-in-7-years-surpasses-upas-10-year-record-of-61 > accessed 6th August 2022
[5] Gobinda Mukhoty, ‘Review of Re-Promulgation of Ordinances: A Fraud on the Constitution of India by D.C. WADHWA’ (1983) 39(4) India Quarterly 2.
[6] Constitution of India, 1950, art 123
[7] Reena Zachariah , ‘The Securities Laws Bill: Amendments & their legal implications’ (The Economic Times , 11th August 2014)< https://economictimes.indiatimes.com/news/economy/policy/the-securities-laws-bill-amendments-their-legal-implications/articleshow/40021550.cms?from=mdr > accessed 6th August 2022
[8] Shreya, ‘Ordinances promulgated during different Lok Sabhas’(The PRS Blog, 21st April 2014) <https://prsindia.org/theprsblog/ordinances-promulgated-during-different-lok-sabhas > accessed 8th August 2022
[9] Dhanmanjiri Sathe,’ Land Acquisition Act and the Ordinance: Some Issues’ (2015) 50(26) Economic and Political Weekly 2.
[10] Krishna kumar Singh vs State of Bihar 2017, SCC OnLine SC 10
[11] Constituion of India, 1950, art 213
[12] Constitution of India, 1950, art 123
[13] Constitution of India, 1950, art 213
[14] Kesavananda Bharati vs UOI 1973, AIR 1461 [482].
