The Devious use of Ordinances by the Legislature

Generally, there are three main categories of governmental functions, namely, the legislative, the executive, and judicial functions. To exercise these functions there are three main organs of the government in a State, namely, the legislature, the executive, and the judiciary. In a free democratic state, there must exist a separation of powers between the organs of government to eradicate administrative discretion.[1] But in India, it has not been accepted in its strict sense and thus there is an overlap of functions between the governmental organs. One such example is the ordinance making power of the executive which is essentially a legislative function.

Ordinances under the Indian Constitution are laws promulgated by the President or Governor under Article 123 and Article 213 respectively. These laws have the same force and effect as an Act of Parliament or Legislature and can be issued when the Parliament or State Legislatures are not in session and only to deal with urgent or unforeseen matters. If the ordinance promulgated is not passed within six weeks of the re-assembly of the Parliament or Legislature, it shall cease to operate unless a resolution disapproving it is passed by both the Houses before the expiration of six weeks. Even though ordinances are promulgated by President or Governor, they are based on the advice of the council of ministers and thus many a times ordinances are promulgated to overturn the decisions of the courts against legislation or to pass a bill which was not initially passed in the houses of parliament or legislature or to fulfil certain political agendas. Thus over the years, different governments have diluted the extraordinary power of promulgation of an ordinance for their interests.

The abuse of ordinance making power was first interpreted in the case of D.C. Wadhwa v. State of Bihar.[2] In this case, the Court pointed out that between 1967 and 1981 the Bihar Governor promulgated 256 Ordinances and all these were kept alive for periods ranging from one to 14 years by re-promulgation from time to time. Out of these 256, 69 were re-promulgated with the prior permission of the President of India. The Court called it a “subversion of the democratic process” and “colourable exercise of powers” and held that this amounted to a fraud on the Constitution and hence unconstitutional. The Court called it “usurpation by the executive of the law-making function of the legislature” and held that the power to promulgate ordinance cannot be allowed to be “perverted to serve political ends”. This case indeed put forward the mischievous tool of re-promulgation. Re-promulgation is resorted to when the ordinance issued is not passed in the Houses of Parliament or Legislature in the first instance itself and is continually issued until it is passed. Another example of this is the case Krishna Kumar Singh v. State of Bihar.[3] In this case, the D.C. Wadhwa judgment was relied on and the Court held that the seven successive re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance of 1989 as unconstitutional. Re-promulgation of Ordinances is a fraud on the Constitution and it creates doubt in the legislative functions of the Government.

Another important circumstance regarding ordinance promulgation is to satisfy the political need and influence of different governments. One important example of this is “the Emergency” of 1975 to 1977 declared through an ordinance. Another example of this is regarding the ordinance issued to uphold the provisions of the Representation of People Act,1951 which allows legislators to retain membership of the legislature even after conviction. This ordinance was also promulgated to nullify a ruling of the Supreme Court prohibiting convicted persons to be members of the legislature. But later the cabinet withdrew the controversial ordinance. This is a prime example of the legislature overreaching its power. Over these years many such ordinances have been passed by the legislature to outsmart the decisions of the Supreme Court and High Courts. One such example of this is the ordinance issued to amend the Prevention of Cruelty to Animals Act,1960 issued by Governor of State of Tamil Nadu. It was promulgated against the Supreme Court judgment in Animal Welfare Board of India v. A Nagaraja,[4] which held that the conduct of ‘Jallikattu’, a bull sport is violative of the provisions of the Prevention of Cruelty to Animals Act,1960. The ban on Jallikattu caused a mass protest in the state and thus Centre was forced to promulgate the ordinance in favour of the state. Such dilutions to the power pose a serious threat to the legislation process of our country. There are instances when the Court even questioned the credibility of an ordinance issued based on public outcry such as ‘The Criminal Law (Amendment) Ordinance,2018’ which allows courts to award the death penalty to those convicted of raping children below 12 years of age. This was promulgated in the wake of the Kathua and Unnao rape incidents thus prompting the court to question whether it was based on the effect of the public outcry. Recently the Kerala State Government has brought an ordinance to overcome the Kerala High Court verdict which stayed the government’s order to cut employees’ salaries for six days every month for a total of five months to fund the situation of Corona Virus Pandemic. The use of ordinance issued as a way to overcome the Court’s decision is indeed a crafty way to achieve the means of the legislature.

‘The Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020’ is another controversial law promulgated following the protests concerning Citizenship Amendment Act, with an aim to the recovery of damage to public or private property during hartal, bandh, riots, protest, etc. through the accused through claims tribunals with no judicial review by any other court. Even though it aims at claiming damages it is dangerous as it can also affect innocent protestors who are not part of the destruction. Also, the absence of judicial review makes it suspicious. Another ordinance passed by Uttar Pradesh Government in the wake of Covid-19 is also under criticism now i.e. the ’Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020’. This ordinance exempts businesses and industries from certain labour laws for the next three years as a measure to get the State’s industrial activities a boost but at the same time, it is expected to cause exploitation of workers. This kind of vague and arbitrary lawmaking can disrupt the stability of society. In A.K. Roy v. Union of India,[5] the Court while dealing with the National Security Ordinance held that Ordinance would be subject to the test of vagueness, arbitrariness, reasonableness, and public interest.

There are many instances when the government has resorted to promulgating Ordinance due to the non-co-operation of opposition parties. Many Ordinances are concerned with bills pending before the Parliament or legislatures. An example of this is the Ordinance on ‘The Muslim Women (Protection of Rights on Marriage) Bill, 2018’. The Government failed to pass it in the Rajya Sabha due to the minority of members and opposition of other parties thus prompting them to pass it through an ordinance. Other such examples are ‘The Indian Medical Council (Amendment) Ordinance, 2019’ and ‘The Companies (Amendment) Ordinance, 2019’. Other than this there are instances when the Government urgently passes Ordinances without subjecting them to the discussions of the Houses of Legislature. This kind of urgent issue of ordinances has made the people question its credibility. Discussions are essential to eradicate the faults in legislation as well as to make stronger legislation. Absence of it will only diminish the value of the Ordinance. But the competition of political parties have neglected all these aspects and ended up in promulgating an umpty number of ordinances to cater to the political agendas of different parties. Thus ordinance promulgation has now become a tool of ease for the legislators to avoid trouble in law-making as well as to deal with the non-passing of bills in the Houses of Parliament as well as Legislatures. Also now it has been frequently instituted even without an emergency to satisfy the whims of the political parties with a majority. If an Ordinance is not passed the legislatures tend to re-promulgate it until it is passed. This all shows the astute ways of the legislature in promulgating ordinances and is a serious threat to the balanced separation of power doctrine followed by the state. As Ordinance making power is coextensive with the legislative power of Parliament, an Ordinance will be void if it violates any Constitutional provisions. So to avoid the abuse of ordinance making power of the executive, necessary checks must be laid down.

Ordinances are only to be passed in emergencies and when the President finds necessary circumstances to institute it. Thus it is necessary for lawmakers to abide by the Constitution and shall only promulgate Ordinances accordingly. All other unnecessary promulgations must be declared void to protect the extraordinary power of the President from abuse.

[1] Lectures On Administrative Law (4th Edn.)33

[2] ( 1987) 1 SCC 378

[3] 2017 (2) SCJ 136

[4] (2014) 7 SCC 547

[5] AIR 1982 SC 710

Anooja S. G. from Government Law College, Thiruvananthapuram

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