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Repromulgation Of Ordinances: A Violation To The Spirit Of Constitution?

The recent decision of the central government to repromulgate the ordinance that aims to establish air quality management in the national capital region has led to the main question of whether such practices are violative of the constitution. The doctrine of separation of powers is the fundamental feature of the constitution according to which the law making authority is the function of the legislature however the ordinance making power of the president and the governor is an exception to it.

Even though constitutionally being a provision meant for emergencies, since independence it has been used quite frequently by the executive in order to at times bypass scrutiny. If ordinances are considered bad then Re-promulgation is even worse. Re-promulgation is said to be violative of the very spirit of the constitution, repromulgating of the ordinances enables the ordinances to last forever.

This paper by analyzing the recent increase of Re-promulgation as well as by discussing various issues relating to them tries to establish that Re-promulgation is a violation to the spirit of constitution and how this practice must be avoided until there is case of extreme emergency.

Introduction
India after independence opted for a parliamentary system. While drafting the Indian constitution the drafting committee had separated and specified the function of the different organs of the government namely executive, legislative and judiciary this leads to separation of power. The doctrine of separation of power ensures that the functions, duties and powers of all three branches are distinctly established. It also acts as a form of checks and balances to ensure that the powers are not misused/exploited by any one of the organs.

The law making process lies with the legislature, considering the country's vast and diverse population there is a need for deliberation, discussion and a debate on very issue of mass concern however there is an exception to this, the constitution under article 123 and 213 allows the executive to step in and pass a law in case of an emergency when the parliament isn't in a session.

Ordinances have the same effect of law passed by the legislature; this ordnance making power is one of the most important powers of the executive.

Even though ordinances were originally considered to be an emergency provision, over the past few years the number of ordinances passed had been increased. Along with an increase in the ordinances passed there has also been a gradual increase of ordinances being repromulgated.

The recent decision of the central government to repromulgate Commission for Air Quality Management in the National Capital Region and Adjoining Areas Ordinance, 2020 has led to several questions being raised regarding the practice of the issuing ordinances as well as the constitutionality of the ordinances being re promulgated.

This paper will try to determine whether this Re-promulgation of ordinance are undermining the role the legislature as well as going against the doctrine of separation of power by understanding the concept of ordinances analyzing the problems associated with issuing of ordinances and whether the frequent re promulgation should be legal.

The first half of the paper deals with the ordinances; its meaning, definition and issues revolving around it and the second half of the paper deals with the major question of whether Re-promulgation of ordinances is a violation to the spirit of constitution? the answer to this will be determined by analyzing the recent trends of Re-promulgation of ordinances as well as analyzing the issues pertaining to it.

What are ordinances?

The constitution under article 123 and 213 gives the president as well as the governor the authority to pass laws in case of emergencies/cases requiring immediate effect while the parliament isn't in session, these laws passed are known as ordinances or in other words ordinances are the laws which are promulgated by the executive authority when the houses are not in sessions.

These ordinances passed by the executive will have the same effect of as the laws passed by the legislature. The ordinances are bound to lapse after period of 6 weeks from the reassembly of the parliament.

Article 123 of the constitution provides the president of the nation to pass ordinances while article 213 of the constitution provides the governor of the state the authority to pass laws in case of emergencies.
Governor President
1. An ordinance issued by the governor as the same effect and force as an law/act passed by the state legislature 1. The ordinance passed by the president of the nation will be treated with the same effect and force as such of an act passed by the center
2. The ordinance issuing power of the governor is coextensive of the legislative power of the state legislature, thus he can only issue ordinances on subjects with the state legislature can pass laws 2. The president's ordinance issuing power is co extensive the legislative power of the parliament, he can issue ordinance only on subjects on which parliament can pass a law
The governor can't promulgate an ordinance without instructions from the president under these 3 circumstances:
  • If a bill contains the same provisions that had required the previous sanction of the President for its introduction into the state legislature.
  • If it would be deemed necessary to reserve a bill containing the same provisions for the consideration of the President.
  • If an act of the state legislature containing the same provisions would have been invalid without receiving the President's assent.
3.Apart from the exception that the president can't pass a ordinance amending the constitution, the president generally doesn't require any instruction to promulgate an ordinance.

Problems associated with ordinances

Despite the constitution allowing the governor and the president to pass laws in cases of emergency under article 213 and 123, there has been a lot of controversy involving this ordinance making power of the executive. It is believed by many that this power of the executive goes against the spirit of the constitution and the frequent promulgation of the ordinances leads to an Ordinance Raj
  • One major issue of the ordinance is that the president generally doesn't exercise legislative discretion, the president only promulgates them, it is the council ministers who in reality decide if the ordinance is essential. This influence of the ministers may at times led to arbitrariness[1]

  • The articles of the constitution don't specify any maximum limit of ordinances which can be passed by the president in a period of time. This lack of specification may lead to the president to pass as many ordinances as he wishes under the circumstances that the parliament is not in session and the necessity of an immediate action is met.

  • The major issue or problem of the ordinances are relating to the re promulgation of the ordinances, the question of whether they should be legal or unconstitutional is a debate which has been going on for quite some time.

Re-promulgation Of Ordinances: Violation To The Spirit Of Constitution?

The ordinance route is bad, Re-promulgation worse
Re-promulgation of the ordinances has always consistently been a major topic for discussion and debate and during the recent times it has become an extremely important topic considering the fact that over the past few years the number of ordinances being repromulgated has been drastically increased.

Re-promulgation of ordinances can be determined by the following 3 steps:

  • Title of the both the Ordinances
  • By analyzing the contents of both the Ordinances: to see if the context and the contents are similar
  • Tracing the legislative entries of the original and latter version of the Ordinance, if they belong to the same legislative entry, then it's a re-promulgation.
Recently the central government had decided to repromulgate an ordinance which establishes the commission for air quality management in the National Capital Region, or the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020[2]

This recent decision has once again led to the several questions being raised on the practice of issuing ordinances and the repromulgating them.

A quick glance to the timeline of ordinances issued since independence helps in clearly determining that this power of issuing ordinances has been used quite frequently instead of it being used as an emergency provision or as a last resort.

Timeline of ordinances issued and repromulgated:

  1. 1950s:
    In the early 1950s ordinances passed especially the central ordinances were issued at an average of almost 7.1 ordinances per year.
  2. 1970s:
    1980s:
    In late 1960s and beginning 1970s saw a gradual increase in the number of ordinances being issued. For example in Bihar 256 ordinances were passed
  3. 1990s:
    1990s saw a massive increase in the number of ordinances being issued; the average of the ordinances had increased to almost 19.6 per year.
  4. 2010s :
    It was in the 2010s that the issue of the ordinances saw a gradual decline, the number of ordinances dropped to an average of 7.9
  5. 2019-20:
    The nation has experienced a spike in the issuing of ordinances, the ordinance increased to 16
  6. 2020-21:
    The ordinances issued in 2020 become 15 and in 2021 till now 4 ordinances has been issued

With the increase in the ordinances being issued every year the number of ordinances being repromulgated has also increased tremendously. Especially in the last 8 years it can be said that India is experiencing an ordinance Raj which has subsequently led to the sudden wave of Re-promulgation of ordinances which can be seen as mentioned below:

Re-promulgation of an ordinance by the Centre in the recent years

  • 2013-2014: the securities laws ordinance was repromulgated for 3 years
  • 2014-2015: The land acquisition act which was issued in the year 2014 was repromulgated twice in the year 2015
  • 2016-2019: the Indian medical council ordinance was issued in 2018 and was repromulgated in 2019
  • 2020-2021: the Commission for Air Quality Management in the National Capital Region and Adjoining Areas Ordinance has recently in this year been repromulgated

Re-promulgation of ordinances by the states
  • It has been reported in Bihar that about 69 ordinances were repromulgated in which almost 11 ordinances were kept alive for almost 10 years
  • Kerala, Karnataka and Maharashtra have respectively issued 41, 24 and 21 ordinances. Out of which Kerala has re promulgated one of its ordinance for about 5 times in 2021

Critical analysis
The issue of frequent Re-promulgation of the ordinances isn't new, however it is during the recent years that has seen a sudden increase in it. And this sudden increase leads to the question of its constitutional validity.

Several cases have been filed over the years to determine the constitutionality of the ordinances some of the major Cases relating to Re-promulgation of ordinances are:
  • D C Wadhwa v state of Bihar[3]:
    This was the case in which the Supreme Court had pointed out the blatant increase of ordinances issued. There were 256 ordinances issued and all of them were also kept in force for a period of 1-14 by frequently repromulgating them. The court had held that successive Re-promulgation of the ordinances having the same texts and without attempting to pass the bills will amount to a violation to the constitution of India; the court also held that the exceptional power of the executive to pass laws must not be treated as a substitute for the legislative power of the legislation.
     
  • Krishna Kumar Singh & Anr vs State Of Bihar[4]:
    This is the landmark judgment in which it was held that the Re-promulgation of ordinances are a fraud to the constitution. In this case the 7 bench jury held that the power conferred to the executive doesn't make it a parallel law making authority. This case attempted to provide more clarity on the challenges imposed upon the law making authority of the legislative due to Re-promulgation of ordinances. The court in the case asserted in the supremacy of the parliament with regards to making laws and also emphasized that the 'ordinances are only meant to be used in exceptional situations'[5]

Supreme court stance in the matter of Re-promulgation
  • The Supreme Court in 1986 had ruled that the Re-promulgation of ordinances contrary to the basic fundamentals of the constitution and a subversion of democratic legislative processes, the mechanism could be very likely used as an exercise of power by the government to ignore the legislature.
     
  • Thus this could indirectly bestow executives the law making function of the Legislature

Re promulgation of ordinance : should it be legal?
As we had established earlier ordinances are not a very healthy practice in a democratic country, it violates the basic structure of the constitution and must only be used when there is an extreme case of emergency. If the ordinance route was unhealthy, the route of Re-promulgation is worst; similar to the case of ordinances, Re-promulgation of ordinances has several issues concerning it such as
  • Usurpation of the legislative power:
    Issue of ordinances are an exception to the law making authority of the legislative in cases of emergencies thus these laws comes with an expiry time however when an ordinance is repromulgated the life of the ordinance is extended which directly leads to usurpation of powers.
     
  • The doctrine of separation of powers is undermined:
    The supreme court of India in the landmark case of Kesavananda Bharati v State of Kerala[6] established that the separation of power is the basic feature of constitution , the mechanism of ordinance is not an alternative to the parliament legislature instead it is merely just a provision in case of emergency . The Re-promulgation of the ordinances allows the executive to make permanent legislation without any debate or discussion by simply repromulgating the ordinances.
     
  • Ignoring the Supreme Court's decision: as mentioned above the Supreme Court has been clear on its stance that the Re-promulgation of ordinances violates the fundamental structure of the constitution.

With the recent Re-promulgation of several ordinances it can be safely said that the center as well as the state has decided to ignore the observation of the Supreme Court.
Apart from the few issues specified above the ordinance making power as been misused even during the period of actual emergencies.

Re-promulgation of ordinances in the hour of pandemic : While the COVID 19 pandemic has affected the entire world making everyday activities difficult however the same pandemic in a way is being used as a cover to promulgate as well as repromulgate several ordinances.

The pandemic is an emergency which requires suitable laws to govern the country in the time of crises. Ordinances in such a scenario are ideal as the situation requires immediate effect however as per several researches conducted it can be seen that the executive is using the pandemic as a cover to pass laws without debate and discussion.

Since last March 11 ordinances has been passed by the government out of which 5 are broadly related to the COVID pandemic All the other ordinances are unrelated to the pandemic, including the Banking Regulation (Amendment) Ordinance, and the three ordinances related to agriculture [7] which makes several experts question the necessity of such ordinances.

Conclusion
The doctrine of separation of power is a basic feature of the constitution. According to which the law making authority is of the legislatures however in a case of absolute emergency the executive can step in and pass ordinances which will have the same effect that of the laws passed by the legislature except ordinances comes with an expiry date of 6 weeks from the reassembly of the parliament. The Re-promulgation of the ordinances is the main issue of this authority of the executive. While the Constitution had never really permitted it, it has been a practice since years with Ordinances being re-promulgated multiple times.

Re-promulgation of ordinances violates the very spirit of the constitution and must be completely avoided unless there is an extreme need of it. The executive must show self-restraint, both the state and central is violating the constitution by frequently repromulgating ordinances the other 2 organs i.e. the judiciary and the legislature should check this practice as by not doing so they are abdicating their responsibility too.

Should Re-promulgation be allowed (Recommendations)
After analyzing various factor it can be said that the Re-promulgation of ordinances are a violation to the spirit of the constitution, that being said the next major question which arises is of whether such a practice should be allowed?

Circumstances can arise which may require immediate effect and under such circumstances ordinance or the Re-promulgation of an existing ordinance may become extremely important. Thus I believe the executive before repromulgating an ordinance must try to answer all the following questions, these questions can also act as parameters to Re-promulgation of the ordinances:
  • Is the situation a case of extreme emergency?
  • Is there an absolute need to promulgate/ repromulgate an ordinance or is any other route possible?
  • Does the subject of the ordinance to be repromulgated related to the current situation of emergency?

End-Notes:
  1. Shubhankar Dam, Making Parliament Irrelevant: A Postcard from India, The Theory and Practice of Legislation 65, 67 (2016)
  2. M.R Madhavan , The ordinance route is bad, Re-promulgation worse THE HINDU (Apr 19,2021) https://www.thehindu.com/opinion/op-ed/the-ordinance-route-is-bad-Re-promulgation-worse/article34361919.ece
  3. D.C. Wadhwa v. State of Bihar, 1987 AIR 579
  4. Krishna Kumar Singh & Anr vs State Of Bihar 2017, (2) SCJ 136
  5. Gautam Bhatia, The Supreme Court's Ordinance Judgment II: Two Debates, Indian Constitutional Law and Philosophy (Oct. 25, 2020, 09:30 pm), https://indconlawphil.wordpress.com/2017/01/03/the-supreme-courts-ordinance-judgment-ii-two-debates/.
  6. Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461
  7. Derek O' Brian , The ordinance raj of the Bharatiya Janata Party, Hindustan Times (Sep 11, 2020) https://www.hindustantimes.com/analysis/the-ordinance-raj-of-the-bharatiya-janata-party/story-NlVvn0pm6updxwYlj0gSvJ
Also Read:
  1. Ordinances in India
  2. Promulgation of Ordinances and Abuse of Provisions
  3. Prospective Vs. Retrospective

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