Current Affairs
Supreme Court ruling limits life of ordinances
The government would be courting legal trouble if it attempts to re-promulgate the ordinances. The government had recently promulgated some ordinances.
SC’s views:
- In 1986, the Supreme Court judgment in D.C. Wadhwa versus State of Bihar declared that it was the “constitutional duty” of the public to approach the court against re-promulgation of ordinances in a massive scale as a routine measure.
- The apex court held “the power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and cannot be allowed to be ‘perverted to serve political ends’.”
- The judgment held that the apex court can adjudicate if the re-promulgation subverted “the democratic process which lies at the core of our constitutional scheme and subjected people to be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive”.
Impact:
This may undermine the government’s surge for an investment-friendly atmosphere. Few investors would like to gamble on such shaky grounds, banking their hopes on the continued survival of the government’s ordinances.
Ordinance:
Ordinances are temporary laws which can be issued by the President when Parliament is not in session.
- Ordinances are issued by the President based on the advice of the Union Cabinet.
- The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution.
- This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.
- Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’.
- The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session.
Approval by the Parliament:
Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses.
Why are they issued?
- Often, ordinances are used by governments to pass legislation which is currently pending in Parliament.
- Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident.
History of Ordinances:
- Ordinances were incorporated into the Constitution from Section 42 and 43 of the Government of India Act, 1935, which authorised the then Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’.
- Most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long.
- Some Members of the Constituent Assembly emphasised that the Ordinance making power of the President was extraordinary and issuing of Ordinances could be interpreted as against constitutional morality.
RS chaos may stymie joint session on ordinances
The government has said that it would resort to all procedures, including a joint sitting of Parliament, to change a spate of ordinances into Acts of legislature. But it may run into some problems if the Rajya Sabha is stalled in the next session.
Article 108 of the Indian Constitution:
Article 108 of the Constitution cites the three grounds for the President notifying a joint sitting. They are:
- If one House passes the Bill but the other rejects it.
- If one House passes the Bill, but six months elapse without the other House passing it after reception.
- When one House passes the Bill, but the other House passes it with certain amendments which the first House disagrees with and there is a deadlock.
What is the problem now?
- A precondition for a joint sitting is that a Bill, along with a statement of reasons for promulgating the ordinance, should have been first defeated in one of the Houses.
- If the motion does not come up and is not defeated, there is no chance of a joint session of Parliament.
- If no business is undertaken, there is no chance of a joint session being called and the ordinances will lapse.
The Winter Session saw a paralysed Rajya Sabha unable to pass key Bills on insurance and coal mines cleared by the Lok Sabha.
If so, the government has to repromulgate the ordinances. On the other hand, the government would be courting legal trouble if it attempts to re-promulgate the ordinances.