Ordinance

What is an 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.

Constitutional Provisions

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.

History of Ordinance-making power

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.

Ordinances Promulgated by the President

A list of all the ordinances which have been enacted from the time period between 1950-2014 can be found in the Lok Sabha report

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  List of Ordinances promulgated by the President between 1950-2014

Re-promulgation of Ordinances

Re-promulgation of Ordinances occurs when an ordinance is reissued after its initial validity has expired, effectively extending its life without going through the full legislative process. This practice raises concerns regarding parliamentary supremacy, as it can lead to the circumvention of legislative scrutiny.

On January 2, 2017, a seven-judge bench of the Supreme Court of India ruled, in a 5:2 decision, that the unrestricted re-promulgation of ordinances is unconstitutional. The Supreme Court, in the case of Krishna Kumar Singh v. State of Bihar, 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.

Similar Terms

Ordinances are referred to by different terms in various countries, reflecting their unique legal frameworks and governance structures. Some examples include:

• Decree: In many countries, such as France and Egypt, a decree is a formal order issued by a government authority that can have the force of law.
• Executive Order: In the United States, an executive order is a directive issued by the President to manage the operations of the federal government, similar to an ordinance.
• Regulation: In countries like Germany and Canada, regulations are rules made by government agencies under the authority of statutes, often serving a similar purpose to ordinances.
• Proclamation: This term is used in several jurisdictions, including the Philippines, where a proclamation can be issued by the President to address urgent matters.
• Statutory Instrument: In the United Kingdom, statutory instruments are a form of legislation made under the authority of an existing Act of Parliament, akin to ordinances.
• Bylaw: Local governments in many countries use bylaws to regulate local affairs, which can be similar to ordinances at the municipal level.
• Fiat: In some jurisdictions, a fiat is an authoritative decree or order issued by a governing body.

Research that Engages with Ordinances

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. Reporting by the executive to Parliament about the ordinances issued could ensure greater accountability and oversight, thereby reinforcing democratic values and ensuring that the exercise of legislative power is circumscrippled.