What is an ordinance?
Ordinance is an authoritative order which is promulgated in India either by President or Governor when the circumstances render nothing but require an immediate action. It is promulgated when the Parliament stands in recess. An order promulgated through an ordinance should not be violative of any constitutional law or any national law. An ordinance is an order which has the same effect as that of an Act or Bill and is subjected to Fundamental Rights as well as to limitations of Fundamental Rights. An ordinance is a classic example of subordinate legislation as the Parliament authorises the President to act in his executive authority and promulgate an ordinance as the Parliament stands in recess. But even after this, the promulgation of an ordinance is not an executive action but an administrative action.
Ordinance in India
The power to promulgate an ordinance in India is given by the virtue of Article 123 to the President and by Article 213 to the Governor. The President promulgates an ordinance when the Parliament stands in recess and the governor promulgates ordinances when the Legislative Assemblies of the state are not in session. The ordinances can be promulgated only on those matters on which the Parliament can make laws. The ordinances are promulgated mostly on the matters of the Union List. However, the governor cannot promulgate ordinance on following matters without the advice and instruction of the President. The governor needs the consent of the President on the matters
1. which would require sanction of the President if presented or introduced before the legislature.
2. If a bill would have been contained by the governor to be considered by the President.
3. If any legislative act containing same provisions would have been invalid if not received or assented by the President.
Any ordinance promulgated cannot be challenged in any court of law, however, when any ordinance is re-promulgated, it could be struck off by the courts. The Bihar Government promulgated the ordinances over and over again and thus misused the power to promulgate the ordinances as the ordinances cannot be challenged in the court of law and their re-promulgation cannot be questioned about its constitutional validity. Thus, the court in the case of DC Wadhwa v. State of Bihar,” the governor has no power to re-promulgate the same ordinance successively without bringing it before the legislature. Further continuing the judgment, practice of large-scale re-promulgation of same ordinances repeatedly in a routine manner amounts to usurpation of legislative function by the executive, colourable exercise of power and fraud on constitutional provision. Hence, holding it as unconstitutional.” By this the court made it clear that there shouldn’t be any Ordinance-Raj in the country.
The ordinance system is an obnoxious practice that got embedded in the Indian governance system right from the times of British Raj. It further swept through the Government of India Act, 1935 which gave power to the Governor-General to promulgate the ordinance if it renders necessary for him to take an action immediately. This provision was created to enhance the functioning and to do away with the unnecessary delay to take an action immediately when the Parliament is not present but despite serving its true purpose, the power has been reeking of monstrosities in the name of a constitutional function.
Even when an ordinance is promulgated by the president, it requires a latent assent of the Parliament, which clearly shows that an ordinance cannot become an Act unless reviewed or assented by the Parliament. It loses the stature of an act if it
1. “Ceases to become operative at the expiration of six weeks after it has been laid down before the Parliament or,
2. Before the expiration of six weeks, a resolution is passed that disapproves it by both the Houses of Parliament upon the passing of those resolutions or,
3. Is withdrawn by the President.”
The ordinance making power is free prima facie but is really not independent in its functioning. Even when the President is promulgating an ordinance in the absence of the Parliament and before all the necessary conditions are fulfilled for an ordinance to become an Act as stated above, an ordinance is promulgated on the advice of the council of ministers and the President have only an executive authority if we see its promulgation. There have been numerous incidences where the ordinance power has been blatantly misused by the council of ministers thus, defeating its very purpose. As per the Pre-Legislative Research, 829 ordinances have been passed from 1952-2020. The ordinance power was horribly misused in the term of the Congress government. 637 ordinances were promulgated between 1952-2014 out to which the first woman Prime Minister of our country in her reign issued 99 ordinances between 1971-77 making her government to issue most ordinances in the history of Indian governance.
In the case of Krishna Kumar Singh and Another v State of Bihar & other, the Bihar government promulgated an ordinance to take over the administration of all the Sanskrit medium schools in the state and when the same was about to lapse, it would be re-promulgated thus abusing the power for about two years. The bill was never produced in front of the parliament. The issue before the Supreme Court was whether the ordinances were being re-promulgated over and over again were valid or invalid. The apex court had also the question whether the employees of the school and college that challenged the ordinance were still considered as the state employees even when the ordinance ceases to be inoperative. The supreme court held that an ordinance will cease to exist if it becomes inoperative as it is not in congruence and fit the constitutional mechanism. The Central Government cannot go on a spree of making laws without paying heed to the prescribed constitutional procedure and mechanism. The case also emphasized on the issue that the rights of any company or any individual may not be permanent and will continue to be till the course of the ordinance. The Supreme Court in the case of AK Roy v. Union of India held that the ordinance making power of the President cannot extend beyond the judiciary and is subjected to judicial review. While referring to another case of ordinance, the apex court in the case of R.K. Garg v. Union of India reiterated the words of Dr. B.R. Ambedkar and said, “Legislative Power conferred on the President under this article is not a parallel power of legislation. It is a power that can be exercised only when both the houses of the Parliament are not in session and it has been conferred ex necessitate in order to enable the executive to meet an emergent situation. However, the law made by the President by issuing the ordinance is of strictly limited duration and it ceases to exist on the conditions described in Article 123 of the Indian Constitution. Furthermore, the power to promulgate ordinance conferred on the President is coextensive with the power of the Parliament to make laws and the President cannot issue an ordinance which Parliament cannot enact into law.”
Article 123 provides only a momentary power to the President and the fact that an ordinance has the same effect as that of any Parliament Bill, it very uncannily turns the ordinance also into an unsaid rule of the Parliament as it always does.
 AIR 1987 SC 579
 Indian Constitution Bare Act, 1960.
 (2017) 1 SCC 3
 (1982) 1 SCC 271
 (1981) 4 SCC 675
This article has been written by Ritisha Choudhary, 3rd-year law student at University of Petroleum Studies, Dehradun (UPES).
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