Re-Promulgation of Ordinance

INTRODUCTION

The Indian Constitution inhabits the Doctrine of Separation of Power between different bodies of functioning. Despite this doctrine, the constitution empowers executives namely President and Governor to perform a function of legislation to tackle urgent situations where the normal legislative procedure is not in process. Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet, which will have the same effect as an Act of Parliament.

PROVISIONS

This power has been vested under Article 123 of The Indian Constitution to the President and under Article 213 to the Governor of the States. Conditions required to pass an ordinance (as mentioned in the constitution)¹ –

1. It can be promulgated any time, except when “both” houses of Parliament are in session.

2. It can be promulgated if the President is satisfied that circumstances exist which make it necessary for him to take immediate action.

Once an Ordinance has passed it has to be put to parliamentary scrutiny as per Article 123(2). Article 123(2)(a) provides that every ordinance promulgated under Article 123 shall cease to operate at the expiration of six weeks from the reassembly of Parliament. Explanation to Article 123(2) provides that where the Houses of Parliament summoned to reassemble on different dates, the period of six weeks shall be calculated form the later of those dates.

Reading Article 123(2) with Article 85(1) where it is mentioned that maximum gap between two sessions of Parliament cannot be more than 6 months. Hence, it can be deduced through the provisions of constitution that a maximum time through which an ordinance can exist is 6 months and 6 weeks.

ISSUE

The Governments have been misusing the powers empowered to them by these provisions by illegally extending the tenure of ordinance by re-promulgating it. As a result of this, an ordinance which was supposed to survive for a maximum 6 month 6 weeks, now survives for years and years.

As we have noted above an Ordinance ‘ceases to operate’ 6 weeks after the two Houses reassemble, except if it is converted into an Act by then. Re-promulgation sidesteps this limitation. Moreover, article 123 is silent on the practice of re-promulgation and since there isn’t an explicit provision prohibiting it, the reuse of an Ordinance isn’t explicitly barred.²

ANALYSIS AND OVERVIEW

An example of repromulgation of ordinances is the Land Acquisition Ordinance passed by the BJP government in 2014. Even though it lapsed after the six-week period in the Parliament and ceased to exist, it was repromulgated, and then repromulgated again nearly 3 times until it was passed. The Government was aware that they lacked support in the Upper House for it to pass there, and hence kept repromulgating the ordinance multiple times as the Constitution is silent on it, hence misusing their power.³ Intense misuse of repromulgation of ordinance is seen in the State of Bihar. In practice, ordinances passed in Bihar held the same value of a law passed by the legislation as some ordinances lasted for a stunning 14 years. Often just the title or the language of the ordinance is changed keeping the effect of it the same. The Executive now the law-making body in Bihar, which was a cause of serious concern and a direct challenge to parliament supremacy on the front of enacting laws.

The provisions under Article 123 and 213 are silent on re-promulgation of ordinances. This silence could be interpreted in two ways – a) Permissive or b) Prohibitive. Though the intent of the Constituent Assembly members would have been prohibitive but in the light of above made examples it can be deduced that the Governments have been sticking to the former meaning of silence. Since it becomes impossible to ascertain the intention of the Constituent Assembly Members with respect to repromulgation, it became open to judicial interpretation. The dilemma however as it stands is that the Courts of Law haven’t themselves been able to clarify the position in the last 70 years, thereby creating a grey area allowing the Executive to repromulgate Ordinances.

Looking at the judgement of DC Wadhwa v State of Bihar⁴ –

“The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law- making function of the Legislature… Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too  much legislative business in a particular Session or the time at the disposal of the Legislature  in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation.”

Even while the court agreed that repromulgation of ordinances is a “Fraud on the Constitution” of the country, it nonetheless allowed a leeway in good faith for an exemption to exist, allowing repromulgation of ordinances.

The exclusion specified in DC Wadhwa is, in my opinion, is an incorrect legal position that is frequently used as a loophole for re-enacting ordinances on a wider scale than previously.

Gyanendra Kumar v. Union of India⁵ was one such case, in which ten promulgations were subjected to judicial scrutiny. The petitioners stated that “repromulgation of an ordinance is a fraud upon the Constitution,” while the State defended itself by claiming that “the contents of the Ordinance could not be considered in the Parliament due to severe workload.” The Supreme Court of India concurred with the state, ruling that repromulgation might be required and allowed it. In addition, it is “Because of the Wadhwa exception, the government can now justify re-enacting an ordinance by merely withholding it from a parliamentary vote and then claiming that there was insufficient time in Parliament to deal with it. The formula is simple: don’t bring an ordinance before both Houses, and keep the sessions brief. A ‘fraud on the Constitution’ may, it appears, alchemise into authorised action through inaction.”⁶

Another prominent judgement on this issue was Krishna Kumar Singh v State of Bihar where Justice Chandrachud held that “repromulgation of ordinances is constitutionally impermissible.” While he did not directly overrule the DC Wadhwa exception by stating that there are no possible exceptional circumstances where the Courts could not deliberate upon an ordinance, the response read in isolation has strong implications. In the next portion, Justice Chandrachud criticised the DC Wadhwa ‘hope and trust’ premise, which stated that we must have hope and trust in the Executive and that ordinances will not be repromulgated. Therefore, the question whether the exception stated in DC Wadhwa was overruled or not, remains ambiguous and hence, allowing the Executive to enjoy the loophole.

Scholars such as Gautam Bhatia have criticised Justice D.Y. Chandrachud’s majority opinion, claiming that the latter simply held that re-promulgation of Ordinances is constitutionally unconstitutional but did not specifically establish that no exceptional circumstances could exist. Another point of contention for him was that, while Krishna Kumar Singh v. State of Bihar depended on the Wadhwa case, it is unclear whether the latter has been overruled. Regarding the criticism of the ‘exception clause’ made in D.C. Wadhwa, the SC just recognised the criticism but did not go into further detail since it regarded it irrelevant to the current case. As a result, Krishna Kumar Singh is an ambiguous decision for Bhatia since it did not declare re-promulgation to be unconstitutional per se.⁷

The flowchart below shows some prominent shortcoming of the ordinance provision and procedure –

What could be the Solution?

The doctrine of checks and balances is the only solution to the challenges mentioned above. In the eyes of the constitution, all branches are equal. This means that none of the branches are superior or inferior to the others. As a result, a three-way check system might be used to evaluate the government’s actions in this area.

• Judicial committees of the Parliament
• Legislative Mandate
• The Judiciary

One more factor in this regard is the prudent discretion of the President himself.⁸

CONCLUSION

Ordinance is an emergency provision and it is not an act in itself. The constitution does not allow Articles 123 and 213 to be a complete legislative action, it is just an extended executive power to be used in emergency. The constitution in Article 123 (2) also makes it necessary to have an open parliamentary scrutiny of ordinance so that the issue on which ordinance is made and the intent is properly debated upon in both the houses maintaining the essence of the constitution. Ordinance is hence not a substitute of a legislative act. To make Ordinance an act it is required to introduce it as a bill and pass that bill using the normal legislative procedure. The constitution does not provide any provision to convert an ordinance into an Act directly. The provisions under 123 and 213 are silent on re-promulgation and this loophole has been excessively misused by ruling governments to repeatedly re-promulgate ordinances for years. The Supreme Court judgement though have pointed out this issue but has always been ambiguous in holding a specific view and direction on this. Indian Constitution has provided for the separation of powers among the legislature, executive, and judiciary where enacting laws is the function 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. Lastly, the way forward is to wait for a more nuanced judgment which will discuss the exception clause and its legality comprehensively. Till then, the executive body should be kept in check so that Ordinances having vested interest of the government are not passed.

Additional References apart from those cited above –

• https://www.mondaq.com/india/constitutional-administrative-law/742420/re-promulgation-of-ordinance-is-a-fraud-on-the-constitution-analysis-in-light-of-krishna-kumar-singh-v-state-of-bihar
• https://articles.manupatra.com/article-details/Promulgation-and-Re-Promulgation-of-Ordinances-A-threat-to-Parliament-Supremacy
• https://www.legalserviceindia.com/legal/article-1981-promulgation-of-ordinances-and-abuse-of-provisions.html

¹ Article 123 of The Indian Constitution

² Shubhankar Dam, Making Parliament Irrelevant: A Postcard from India, The Theory and Practice of Legislation 65, 71 (2016).

³ Shubhankar Dam, Making Parliament Irrelevant: A Postcard from India, THE THEORY AND PRACTICE OF LEGISLATION 65, 71 (2016).

⁴ DC Wadhwa v State of Bihar, MANU/SC/0072/1986.

⁵ Gyanendra Kumar v Union of India, MANU/DE/0010/1997.

⁶ Shubhankar Dam, Repromulgation Game, THE HINDU (June 3, 2015, 12:49 AM). https://www.thehindu.com/opinion/columns/legal-eye-column-repromulgation/article7275518.ece

⁷ 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/.

⁸ Vishal Patil, What are the pros and cons of an ordinance? What changes are required in the present scenario to make it more democratic? (2017) https://www.quora.com/What-are-the-pros-and-cons-of-an-ordinance-What-changes-are-required-in-the-pres8nt-scenario-to-make-it-more-democratic accessed on 25 October 2018.