Repromulgation of Ordinances and Issues Associated

Context:

• The central government has recently repromulgated the ordinance that establishes the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020.
• This raises questions about the practice of issuing ordinances to make law and that of re-issuing ordinances without getting them ratified by Parliament.

Relevance:
Mains: GS II-

• Parliament & State Legislatures: structure, functioning, the conduct of business, powers & privileges & issues arising out of these.
• Structure, organization & functioning of the Executive & the Judiciary.

• Ordinances are laws that are promulgated by the President of India or State Governors on the recommendation of the Cabinet (not a discretionary power).
• They will have the same effect as an Act of Parliament or State legislature.
• Ordinance-making power is the most important legislative power of the executive.
• It can be retrospective.
• It cannot be issued to amend the Constitution.
• The ordinance was originally conceived as an emergency provision.
• However, in recent times the frequent use of ordinances has led to the undermining of the role of the legislature and the doctrine of Separation of powers.
• In the 1950s, central ordinances were issued at an average of 7.1 per year.
• The number peaked in the 1990s at 19.6 per year and declined to 7.9 per year in the 2010s.
• The last couple of years has seen a spike, 16 in 2019, 15 in 2020.

Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. 

But it is subject to the following four limitations:

1. He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session.
2. He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.
3. His ordinance-making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament. This has two implications:
   • An ordinance can be issued only on those subjects on which the Parliament can make laws.
   • An ordinance is subject to the basic structure doctrine.
4. Every ordinance issued by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles.
   • If it is approved by both the Houses, it becomes an act.
   • If Parliament takes no action at all, it ceases to operate on the expiry of 6 weeks from the reassembly of Parliament.
   • Even before 6 weeks, Parliament can pass resolutions disapproving it.

President under Article 123 and Governor under Article 213 is given ordinance making power.

• Governments, Centre and State, are frequently resorting to the practice of repromulgation of ordinances.
• In the Constituent Assembly, while there was a discussion on how long the ordinance could remain valid, no one raised the possibility of an ordinance to be re-promulgated.
• Perhaps such an eventuality was beyond their imagination.

Usurpation of Legislative Power

• Lawmaking is a legislative function and ordinance power is provided for urgent requirements.
• An ordinance “ceases to operate” six weeks after the two Houses reassemble, except if it is converted into an Act by then.
• Repromulgation sidesteps this limitation.
• To repromulgate is to effectively extend the life of an ordinance and lead to subversion of democratic legislative processes.
• It would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through an Ordinance made by the Executive.

Undermines the Doctrine of Separation of Powers

• Separation of powers, which is part of the Basic Structure, is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate.
• Each branch has separate powers, and generally, each branch is not allowed to exercise the powers of the other branches. 
• Repromulgation undermines the separation of powers, as it effectively allows the executive to make permanent legislation without legislative input or approval.

Abuse of the constitutional process

• Repromulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors.
• Repromulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law-making authority in a parliamentary democracy.
• The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process.

Ignoring Supreme Court’s Judgements

• Even after tough judgments on the use of ordinances, both the Centre and state governments have ignored the Supreme Court’s observations.
• This can be seen by frequent repromulgations even after the D.C Wadhwa case of 1987.

Repromulgation of Ordinances by the Center

• In 2013 and 2014, the Securities Laws (Amendment) Ordinance was promulgated three times.
• Similarly, an ordinance to amend the Land Acquisition Act was issued in December 2014 and repromulgated twice – in April and May 2015.
• The Indian Medical Council Amendment Ordinance was issued in September 2018 and reissued in January 2019.
• The current case of the Commission for Air Quality Management is even more egregious.
• While the ordinance of October 2020 was laid in Parliament on the first day of the recent Budget Session, a Bill to replace it was not introduced.
• However, the ordinance has been repromulgated now.

Repromulgation of Ordinances by the States

• States have also been using the ordinance route to enact laws.
• Bihar had issued 256 ordinances between 1967 and 1981, of which 69 were repromulgated several times, including 11 which were kept alive for more than 10 years.
• In 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
• Kerala has also repromulgated ordinances: one ordinance to set up a Kerala University of Digital Sciences, Innovation and Technology have been promulgated five times between January 2020 and February 2021.

Cooper case(1970)

• The Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide.
• This means that the decision of the President to issue an ordinance can be questioned in a court on the ground that the President has prorogued one House or both Houses of Parliament deliberately to promulgate an ordinance on a controversial subject, to bypass the parliamentary decision and thereby circumventing the authority of the Parliament.
• The 38th Constitutional Amendment Act of 1975 made the President’s satisfaction final and conclusive and beyond judicial review.
• But, this provision was deleted by the 44th Constitutional Amendment Act of 1978.
• Thus, the President’s satisfaction is justiciable on the ground of malafide.

D.C. Wadhwa case (1987)

• In this case, the Supreme court pointed out that between 1967–1981 the Governor of Bihar promulgated 256 ordinances and all these were kept in force for periods ranging from 1 to 14 years by promulgation from time to time.
• The court ruled that successive repromulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to a violation of the Constitution and the ordinance so repromulgated is liable to be struck down.
• It held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.

Krishnakumar Singh vs State of Bihar (2017)

• A 7-judge Constitution bench, by a majority of 6:1, held that repromulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, especially when the government persistently avoids placing the ordinances before the legislature.
• The power conferred upon the Governor does not make him a parallel lawmaking authority.
• The legislature is the constitutional repository of the power to enact the law.
• The majority verdict also said that consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to “legislative control“.

• Ordinances are to tackle exigencies when the legislature is not in session and expire at the end of six weeks of the next meeting of the legislature.
• The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.