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Ordinance under Indian Constitution


Ordinance
Ordinance

Content:-


Typically, the legislative power of the Union under the Constitution does not reside with the President but with Parliament. However, in certain scenarios, the Constitution allows the President to be endowed with legislative authority to issue ordinances.


Indeed, the most critical authority of the President is the power to issue ordinances as stipulated in Article 123.


This enables the President to legislate when Parliament is not in session, addressing unforeseen or urgent issues that cannot be resolved through ordinary law [Art. 123(1)]. An ordinance represents a provisional law.


The President has the discretion to retract an ordinance at any point [Art. 123(2)(b)]. Similarly, the Governor holds this power under Article 213.


The scope of this power matches the legislative capabilities of Parliament, meaning it can cover any subject that Parliament may legislate on and is bound by the same constitutional constraints as Parliament's legislation.


This power is exercised by the President (and the Governor) following the recommendations of the Council of Ministers.

 
 

Basics of Ordinance Power


The President cannot promulgate an ordinance unless he is convinced that circumstances necessitate immediate action.


However, it is the President's prerogative to determine whether such a situation exists, and the courts are not entitled to question this determination, including the propriety, expediency, necessity, and motives behind the legislative act. 


While an executive action may be invalidated for non-application of mind or mala fides, this does not apply to an Act or Ordinance, which can only be voided if it contravenes constitutional limits (T. Venkata Reddy v State of Andhra Pradesh AIR 1985 SC 724).


There have been instances where the validity of an ordinance was contested, but courts have predominantly affirmed its constitutionality. For example, in R.K. Garg v Union of India (AIR 1981 SC 2138), it was ruled that the Special Bearer Bonds Ordinance 1981 did not exceed the powers granted by Art. 123. The President is authorised to issue ordinances that amend or alter tax laws. 


The scope of ordinance power is equivalent to that of Parliamentary power, and in assessing the validity of a law, the courts do not consider the law's morality.


Furthermore, an ordinance may address issues arising from a law being declared void by a court. There are no restrictions preventing an ordinance from addressing subjects already legislated upon by Parliament.


An ordinance is regarded as equivalent to an Act of Legislature and is not merely an executive or administrative decision.


It possesses all the characteristics of legislative action, complete with associated incidents, immunities, and limitations under the Constitution, as established in the T. Venkata Reddy Case.


Similarly to laws passed by Parliament, ordinances must also comply with the Fundamental Rights provisions.


Ordinances are considered "law" under Article 21 of the Constitution, as affirmed in A.K. Roy's case. Like the Legislature, which can repeal or amend existing laws, the President has the authority to do the same through ordinances, as demonstrated in Janan Prosanna Das Gupta v Province of W.B (AIR 1949 Cal.1). Furthermore, an ordinance can annul the decisions of the High Court under Article 226, as seen in State of Orissa v Bhupendra Kumar (AIR 1962 SC 945).


In the case of A.K. Roy v Union of India (AIR 1982 SC 710), the court validated the National Security Ordinance, 1980, which included provisions for preventive detention, confirming that it was not in violation of Article 14. 


The court also noted that while ordinances are similar to Parliamentary laws, they are subject to judicial review regarding vagueness, arbitrariness, reasonableness, and public interest, emphasising that such laws are enacted only when the legislature is not in session.


Article 123 places the ordinance-making power under the oversight of Parliament, rather than the courts, as noted in Gyanendra Kumar v UOI (AIR 1997 Del 58).


The Delhi High Court highlighted that challengers must present a substantial initial case proving the lack of necessity for an ordinance before the government is required to justify its actions.

 
 

An exceptional instance occurred in Satya Pal Dang v State of Punjab (AIR 1969 SC 903), where the Supreme Court upheld a Governor's ordinance that regulated legislative procedures during a crisis caused by the adjournment of the Punjab Legislative Assembly, preventing the passage of the Appropriation Bill. 


The Governor prorogued the Assembly and then issued an ordinance to ensure the completion of essential financial legislation as prescribed by Article 209. 


The court affirmed the absolute power of the Governor to prorogue the House and found the subsequent re-summoning of the Legislature appropriate, thereby restoring the democratic process disrupted by the Speaker's adjournment. 


The Supreme Court also corrected the erroneous assumption of the Speaker regarding the Governor's authority, affirming that the validity of the Governor’s ordinance could only be challenged by the Legislative Assembly through a resolution.




B.A. Hasanabha v State of Karnataka

In B.A. Hasanabha v State of Karnataka (AIR 1998 Kant 91), the Karnataka High Court addressed the distinctive nature of ordinances compared to acts passed by the legislature, despite Article 213(2) asserting that an ordinance promulgated under Article 213(1) holds the same force and effect as an Act of the Legislature.


The court pointed out that unlike a legislative act, an ordinance demands intense scrutiny when challenged. This is because an ordinance represents a significant, unchecked power to enact laws without the conventional legislative process.


A bill undergoes rigorous evaluation and amendments in Parliament, scrutinised by both the representatives and particularly the opposition, before it becomes law.


This process ensures that the resulting act is a refined and well-considered piece of legislation. In contrast, an ordinance is enacted exactly as prepared by the government, bypassing this detailed parliamentary procedure.


Therefore, if an ordinance is contested, especially on grounds of mala fides (bad faith) or constitutional validity, it is imperative for the courts to examine it with greater meticulousness than they would with standard legislation.


The history of ordinances that were drafted hastily and proved to be oppressive underscores the necessity for such careful judicial scrutiny.


The examination of an ordinance, therefore, must be undertaken with a heightened degree of care and caution.


Abuse of Ordinance-Making Power

In the constitutional frameworks of countries like the U.K. and the USA, the executive does not typically hold legislative powers, unlike in India.


The Supreme Court of India in the R.C. Cooper v Union of India case (commonly known as the 'Bank Nationalisation Case') clarified that the President, as the constitutional head, generally acts on the advice of the Council of Ministers in all matters, including the promulgation of an ordinance. 


This power, however, can be subject to misuse by both minority and majority governments for bypassing parliamentary debate or to enact measures temporarily due to uncertainty of support in Parliament, potentially advising the President to prorogue Parliament to meet specific objectives, indicating bad faith (malafides), which the 44th Amendment allows the judiciary to examine.


A stark illustration of the abuse of ordinance power was witnessed in the D.C. Wadhwa v State of Bihar case, where 256 ordinances were promulgated and re-promulgated between 1976 and 1981 without legislative scrutiny, termed by the court as a 'subversion of democratic processes' and 'colourable exercise of powers.' 


The court ruled this as a constitutional fraud, emphasising that the executive cannot replace the legislative function permanently through ordinances.


Ordinances are executive decisions and lack the transparency and scrutiny inherent in parliamentary legislation.


Once promulgated, an ordinance is effective immediately but is subject to parliamentary review once the legislature reconvenes. 


It remains in force until six weeks after Parliament reassembles, unless both Houses sooner pass a resolution disapproving it.


This allows the Parliament a post-facto control over an ordinance, ensuring it either approves, modifies, or annuls the executive's decision.


Additional safeguards include the requirement for ordinances to be replaced by parliamentary acts within a certain timeframe to continue their operation beyond the initial legal period, typically up to seven-and-a-half months considering the legislative calendar.


Furthermore, when an ordinance is to be replaced by a bill, the executive must provide a statement detailing the reasons for the ordinance, although this cannot be debated in Parliament.


While Article 123 or 213 facilitates immediate legislative action via ordinances, it is not undemocratic as long as the Council of Ministers remains accountable to Parliament.


Parliament retains the power to disapprove an ordinance or even issue a no-confidence vote against the government, thus checking potential executive overreach.


Ordinance-making power mirrors the legislative capacity of Parliament and is constrained by the same constitutional bounds.


Any ordinance that exceeds these limits is void. Notably, an ordinance cannot authorise spending from the Consolidated Fund or legislate on matters exclusively within the State List, except during an emergency.

 
 

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