Ordinance

An ordinance in India is a temporary law promulgated by the President or a Governor when the respective legislative body is not in session. It is intended to allow the executive branch to enact urgent legislation when immediate action is necessary which could include situations requiring quick responses to emergencies, changes in law due to unforeseen circumstances, or any matter that cannot wait for the regular legislative process.

The constitutional history of the ordinance-making power of the President of India can be traced back to the Indian Councils Act of 1861, which allowed the Governor-General to issue ordinances during emergencies, with a maximum duration of six months. The Government of India Act of 1935 expanded this power, enabling the Governor-General to promulgate ordinances at his discretion or based on individual judgment, although he was required to seek prior instructions from the Crown in certain situations. Notably, the Governor-General could issue ordinances even while the legislature was in session, and these ordinances could initially last for six months, with a possible extension of another six months through a subsequent ordinance. The restriction on the duration of ordinances was lifted by the India and Burma (Emergency Provisions) Act of 1940, which remained effective until the India and Burma (Termination of Emergency) Order on April 1, 1946. Under the 1935 Act, the Crown had the authority to disallow ordinances; however, this provision was removed by the India (Provisional Constitution) Order in 1947.

Official Definition of Ordinance

Constitution of India

Article 123 of the Indian Constitution empowers the President to promulgate ordinances when both Houses of Parliament are not in session, allowing for immediate legislative action in urgent situations. The President can issue such ordinances if satisfied that circumstances necessitate prompt action, and these ordinances carry the same legal weight as Acts of Parliament. However, they must be laid before both Houses once they reconvene and will cease to operate six weeks after reassembly unless approved by Parliament or disapproved by resolutions from both Houses. This provision ensures that while the executive can act swiftly in emergencies, it remains accountable to the legislature within a defined timeframe.

Similarly, Article 213 of the Indian Constitution grants the Governor of a state the authority to promulgate ordinances when the state legislature is not in session. However, the Governor cannot promulgate an ordinance if it requires prior approval from the President or if it would have needed to be reserved for the President's consideration had it been a bill. This provision ensures that while the Governor can act swiftly in emergencies, there is a mechanism for legislative oversight and accountability.

Ordinance as defined in Case Laws

Re-promulgation of Ordinances

Krishna Kumar Singh v. State of Bihar

The Supreme Court, in the case of Krishna Kumar Singh v. State of Bihar, in a 5:2 decision ruled that the re-promulgation of ordinances is a fraud on the Constitution and undermines democratic legislative processes. The Court emphasized that ordinances are emergency powers meant to be exercised only when the legislature is not in session and must be presented to the legislature upon its return. Re-promulgation is deemed unconstitutional for two main reasons: it circumvents the legislature, which is the primary law-making authority, and it contravenes the limited powers granted under Articles 123 and 213 for issuing ordinances.

Official Database related to Ordinance

Tex of Central Ordinance

The legislative department website maintains a database of central ordinance that provides a compilation of text of ordinances based on the year of promulgation

https://legislative.gov.in/document-category/text-of-the-central-ordinances/

Research that Engages with Ordinances

From Idea to Act: The Indian Legislative Process (NLSIR)

The article "From Idea to Act: The Indian Legislative Process" explores the intricate journey of law-making in India, focusing on the development and enactment of legislation through a detailed examination of the Clinical Establishments Act of 2010 and the Kerala Clinical Establishments Act of 2018. It highlights the various stages involved in the legislative process, from initial conception to drafting and final approval, emphasizing the critical role of civil servants in facilitating this process.

Way Ahead

To improve the making of ordinances in India, better solutions will need to be established: fixing the clearer definition of what constitutes an emergency such that it is not subject to misuse, better legislative scrutiny by making sure justifications are provided in Parliament before the promulgation of ordinances, and limiting the re-promulgation of ordinances by the executive without serious legislative approval. The strengthening of the judicial review process provides further checks on executive power, while greater public consultation and transparency would assure democratic engagement.