Day 77 – Q 1. What is an ordinance? Can ordinance method be used by the Executive to by – pass legislature? Critically comment.
1. What is an ordinance? Can ordinance method be used by the Executive to by – pass legislature? Critically comment.
Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet as per Article 123 of the Constitution. They can only be issued when Parliament is not in session. They enable the Indian government to take immediate legislative action.
- Ordinances cease to operate either if Parliament does not approve of them within six weeks of reassembly, or if disapproving resolutions are passed by both Houses. It is also compulsory for a session of Parliament to be held within six months.
- Governor can also promulgate an ordinance under Article 213. It however requires instructions from the President in cases where a passage of similar bill would have required the assent of President.
Instances where ordinance can be used:
- It is meant as a last resort and not a tool to replace the power or functioning of Parliament.
- It can, generally, be issued only on pressing issues or issues that require immediate consideration that cannot wait for Parliament to assemble and consider the bill.
- Ordinances are used by governments to pass legislation which is currently pending in Parliament, as was the case with the Food Security Ordinance
- Ordinances are promulgated when there is no consensus in the parliament. For E.g.: the recent ordinance on altering the Land Reforms Act.
- Re-promulgation: The Security Laws (Amendment) Ordinance, 2014 was recently re-promulgated for the third time during the term of 15th Lok Sabha. Re-promulgation of Ordinances raises questions about the authority of the Parliament as the highest law making body.
- In Wadhwa vs. State of Bihar (1986), the Supreme Court held that it is unconstitutional to re-promulgate ordinances without putting it to vote in the parliament.
In the above instances, ordinances are being used to bypass legislature. However, following arguments show how it cannot effectively bypass legislature.
- Validity- Maximum validity for an ordinance is 6 months and 6 weeks.
- Restrictions- A constitutional amendment cannot be made through ordinance route.
- Judicial review- Re-promulgation of ordinance can be deemed unconstitutional by the court.
- Not every law or major reforms can be introduced via ordinance route.
Constitution has provided for separation of powers where enacting laws is the function of legislature. The executive must show self-restraint and use ordinance making power only as per the spirit of constitution and not to evade legislative scrutiny and debates.
Best answer: Gurpreet Singh (for 2nd part)