Issuing ordinances, a bad precedent

The Supreme Court has reasserted a basic principle of law making in a parliamentary democracy with an important judgement on the do’s and don’ts of the issuance of ordinances by governments. The ordinance-making provision in the statute is a much-abused one and governments at the Centre and in states have taken unrestrained recourse to it. The seven-judge Constitution Bench has now held that Articles 123 and 213, which provide for issuance of ordinances, are not parallel sources of legislation and that re-promulgation of the ordinance is a fraud on the Constitution. It has also held that ordinances are not immune from judicial scrutiny if the power has been exercised to secure an oblique purpose. The court can scrutinise whether the President or the governor had the relevant material for satisfaction about the need for an ordinance. This is to ensure  that the exercise of the power is not on extraneous grounds.

The Constitution gives the executive the power to promulgate an ordinance on an important matter when the legislature is not in session. It is law making without the legislature, and so it is mandated that the ordinance should be placed before the next session of the legislature. But many governments do not do this because they think the move will be defeated, or because they do not go want to take the ordinance to the legislature for some reason. Disruption of legislative business may be another reason. In any case, the constitutional requirement is not fulfilled, and the ordinance is re-promulgated. The land acquisition ordinance of 2014 was re-promulgated by the NDA government three times before it was dropped. The Bihar government repeatedly re-promulgated an ordinance on takeover of some schools from 1989 to1992 - the apex court was delivering its verdict in this case. Even after the ordinance lapsed, the schools continued to be governed by the state. 

It is such re-promulgation that the court has called a subversion of democratic legislative processes. No law can be formulated or enforced without the sanction of the legislature and the ordinance should lapse if it is not ratified within six weeks of the reassembly of the legislature. Ordinances are measures meant for exigencies. They should not become tools for imposition of the executive’s will and arbitrary decisions on the people. The court has, with the ju­dgement, underlined the paramountcy of  the law making power of the legislature, which is being eroded by the executive. It has in the past held that re-promulgation of ordinances is against the Constitutional scheme. It has now made it clear that encroachment of the legislature’s power through ordinance raj can also invite judicial scrutiny.

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