This article has been prepared by Priyamvada Singh, from School of Law, Galgotias University. Here, she talks about the ordinance making power of the President and its subsequent effect on the independence of the legislature.
The Indian Constitution is the largest written constitution of the world. It is deeply exhaustive and doesn’t shy away from moulding and remoulding itself with changing times: subject to a few rules. A major provision supporting this nature is that of the Ordinance making power provided to the executive branch.
Ordinances are primarily just laws that are passed by the President of India, in times of need and urgency, to combat unforeseen circumstances- like the current pandemic. These Ordinances have the same effect as an Act of Parliament. They enable the government to take immediate legislative action in desperate times. The provision of Ordinance has often come in handy when the time for it has arrived, with the most recent one being The Epidemic Act 1897 (Amendment) Act Ordinance, 2020, which includes the deadly Coronavirus disease of 2019. In this ordinance, Hon’ble President of India Ram Nath Kovind promulgated that it shall be a legal offence to attack healthcare workers. Whoever commits or abets the commitment of violence against health care workers, shall be punished with imprisonment ranging from 3 months to 5 years, and a fine ranging from Rs 50,000 to 2 lakh. This was done in light of recent news of violence against doctors, nurses, etc., that had been working against the COVID-19 pandemic.
To understand the implications of an Ordinance, we have to understand the Parliamentary model of the Indian government. The Parliamentary system of India follows the Separation of Power. The model is also called the trias politica model. The term was coined by noted judge and philosopher, Montesquieu. He came up with the term in the 18th century, in his book ‘Spirit of Law’. This means that the branch of the government is divided into three sub-branches, viz:
- The Legislative,
- The Executive, and
- The Judiciary.
All three sub-branches are entrusted with a certain set of powers and duties, which they must adhere to. These three branches are independent of each other, with the judiciary being placed as a guardian above them. This is done to make sure that any of the three branches don’t come into conflict with each other, but the framework of the constitution is still maintained. The trias politica model is in contrast with the model of fusion of powers, which is followed in England. In the latter, there is an overlap of the executive and legislative branches.
Jurists have often compared the two models and their success in maintaining checks and balances. The model of trias politica puts all three cogs of the government at constant tussle with each other, thus giving rise to a fairer form of democracy- through checks and balances.
Ordinance making power
However, even though there are distinct powers and duties assigned to all three- the power of executive and legislative overlaps on Article 123 of the Constitution of India. Article 123 of the Constitution of India provides the President of the nation with the power to formulate laws in an emergency situation of the Parliament is in recess. However, despite these laws having the same force as any legislatively passed laws, these ordinances are temporary in nature.
Similarly, Article 213 of the Constitution provides the governor of a state with the same powers as aforementioned to the President. A governor of any Indian state may pass any temporary laws applicable in the state if the state legislative assembly is not in session. We must note that a few states in the country follow a bicameral form of legislature. This means that some of the states have two houses of the Parliament. If the state has a bicameral legislature, then he may pass an ordinance if either of the two houses is not in session. These states are: Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh
The ordinance making power entrusted upon the President and the Governor is viewed to be mandatory by many jurists and critics. It is a popular opinion that it helps to deal with emergency situations. An ordinance may have retrospective effect and may be modified to repeal any act of Parliament or even another ordinance. It may also amend or alter a tax law but never can be used to amend the Constitution.
However, this power comes with its own set of limitations.
At the behest of the President/ Governor
The ordinance making power is at the disposal of the President/ the Governor. This widens their scope to misuse it at times and might seem unjust to the others.
It has been noticed that ordinance making is not treated as the last resort in India. In fact, post-independence as many as 637 ordinances have been passed in India. The largest number of Ordinances was promulgated in Indira Gandhi’s rule, between 1970-1977, with a total of 77 ordinances. There has been a decline in the number of Ordinances promulgated since then. This staggering number proves that this power has been used more usually than it should have been.
Sometimes, since they are temporary, when the ordinance becomes redundant after a while, they are brought back into force by the passing of another ordinance- akin to the previous one. This is called the Re-promulgation of Ordinance. The Supreme Court has called the re-promulgation of an ordinance to be a ‘fraud’ on the Constitution. More shall be discussed later in the article.
Against the Principle of Separation of Powers
Since it is the duty of the legislature to make laws, the power of the executive to make ordinances stands against the principle of Separation of Powers. The independence of the legislature falls at extreme risk since even the executive in this situation makes laws. Thus it is advised that this power be used sparingly to maintain the status quo.
To contain the limitations, a number of safeguards have been provided against this power:
- The Constitution asserts that an ordinance may only be passed if either of the houses is in recess, or when the state legislature is not in session.
- The scope of these ordinances has been limited too. They can only be made about subjects on which the Parliament has the power to make laws.
- The ordinance making power is subject to the same distribution of power as the Parliament. This means that the Union, State, and Concurrent List shall be followed while understanding which entity, whether the President or the Governor of a state shall make the law.
- It is also important to ensure that the ordinance does not remove or retract any of the Fundamental Rights the nation provides its citizens.
- The process of the ordinance prescribes that the ordinance be passed by both houses of Parliament/ State Legislature within six weeks of its re-assembly. If it fails to happen, the ordinance shall then go out of force. If the Houses reassemble on a different date the period of six weeks is calculated from the later of those dates. Without being approved by the Parliament and ordinance can last for a maximum period of six months and six weeks.
- All acts done and completed under an unapproved ordinance will lapse.
Further, if an ordinance is sought to be removed, the reason for doing that shall also have to be produced by way of a statement. It should also include the circumstances surrounding the reason.
RC Cooper v. Union of India
Being the lacunae of many hot-debates, the power of Ordinance making has often been challenged in the court of law for its constitutionality. In the landmark case of RC Cooper v. Union of India (1970) while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalize 14 of India’s largest commercial banks, the Apex court asserted that if an ordinance is passed in a circumstance that failed to pass as one requiring ‘immediate action’, the same could be brought to the court of law to be tested for its constitutionality. The contention was relayed 6 years later in the 44th Constitutional Amendment in 1976. The 44th Constitutional Amendment stood in contrast to the 38th Constitutional Amendment which inserted clause 4 to Article 123. The clause asserted that the satisfaction of the President was be-and and end-all of an Ordinance, and thus- it could not be questioned for its constitutionality in the court of law.
Krishna Kumar Singh v. the State of Bihar
As discussed earlier on in the article, the case of Krishna Kumar Singh v. State of Bihar(2017), a seven-judge constitution bench of the Apex Court had held that re-promulgation of the ordinance is a fraud on the Constitution. The Court also held that the satisfaction of the President of India under Article 123 and of the Governor under Article 213 while issuing an Ordinance is not immune from judicial review.
In the above-mentioned case, in 1989 the Bihar government passed the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance. The Ordinance provided for the taking over of 429 Sanskrit schools in the state of Bihar. The services of teachers and other employees of the school were to stand transferred to the state government. The first Ordinance was followed by a succession of Ordinances. None of the ordinances was placed before the state legislature.
As a result of these ordinances, teachers employed in the said schools claimed to have been given the status of Government employees and therefore claimed salary from the Government. On this basis, they filed a writ petition, to claim their salaries, before the Patna High Court. The question was whether seven successive re-promulgations of this Ordinance suffer from any illegality or constitutional impropriety. The High Court of Patna dismissed the writ petition and held that the repeated re-promulgation of the ordinances was unconstitutional.
DC Wadhwa and Ors. v. State of Bihar and Ors
The case bore an uncanny resemblance to the case of D.C. Wadhwa and Ors. v. State of Bihar and Ors. (1987). Therein, it was asked whether the power to pass ordinances was constitutional even if it was not used sparingly. The question arose since in the years prior to the case, it was observed that ordinance making power was being used as a substitute for the legislature’s duty. The writ petitions in the case had been filed to challenge the validity of the practice of the State of Bihar in promulgating and re-promulgating ordinances in great numbers.
To make sure that the power isn’t misused by the ones who bear it, the Supreme Court limited the government’s power to issue ordinances. The sanctity of the Constitution rests on the fact that there be a never-ending tussle amongst the three branches of the government, so that the bird of democracy may sing its beautiful song all day. However, this requires constant scrutiny by the branches, and the citizens alike.
It must be made sure that the powers, where they overlap, must not be employed for corrupt purposes. Failing which, a gross subversion of democratic legislative processes is inevitable. It is said that power corrupts. Needless to say, absolute power corrupts absolutely. Thus, it becomes imperative for the executive to restrain itself, and not let history repeat itself. The usage of the power is to employ it in unforeseen circumstances that require urgent steps. To use it to avoid deliberations and confrontations is not just unethical, but also immoral. Certainly, the satisfaction of the President is not immune from judicial review.
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