The ordinance route is bad, repromulgation worse
NEWS Governments, both Centre and State, are resorting to the practice of ordinance which is a usurpation of legislative power by the executive.
- The central government has recently re-promulgated the ordinance that establishes a commission for air quality management in the National Capital Region, or 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.
CONSTITUTIONAL PROVISIONS FOR ORDINANCE
- The Constitution permits the central and State governments to make laws when Parliament (or the State Legislature) is not in session.
- As law making is a legislative function, this power is provided for urgent requirements, and the law thus made has an automatic expiry date.
- The Constitution states that the ordinance will lapse at the end of six weeks from the time Parliament (or the State Legislature) next meets.
- However, no provisions were placed in the constitution regarding the re-promulgation of the ordinance.
WHAT THE DATA SHOW
- While an ordinance was originally conceived as an emergency provision, it was used fairly regularly.
- In the 1950s, central ordinances were issued at an average of 7.1 per year, while in the last couple of years it has seen a spike, 16 in 2019, 15 in 2020, and four till now this year.
- State governments also used this provision very often.
AN UNCONSTITUTIONAL PRACTICE
- The issue was brought up in the Supreme Court through a writ petition by D.C. Wadhwa, a professor of economics.
- As a result, the five-judge Constitution Bench of the Supreme Court, in 1986, ruled that re promulgation of ordinances was contrary to the Constitutional scheme.
- It said that it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to re-promulgate the Ordinance.
- Such a scheme would be against the constitutional spirit as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly take to itself the law making function of the Legislature.
- But, the judgment did not stop the practice.
- The matter came up again in the Supreme Court, and in January 2017, a seven-judge Constitution Bench declared this practice to be unconstitutional.
- The judgment concluded that, “Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.”
- However, even this judgment has been ignored.
RECENT EXAMPLES OF RE-PROMULGATION
- The Indian Medical Council Amendment Ordinance was issued in September 2018, and reissued in January 2019, as it was passed by only one House of Parliament in the intervening session.
- The current case of the Commission for Air Quality Management is even more shocking. 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. Now, the ordinance has been re-promulgated.
- In 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
- Kerala has also re-promulgated ordinances: one ordinance to set up a Kerala University of Digital Sciences, Innovation and Technology has been promulgated five times between January 2020 and February 2021.
- 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.
- This time period is given for the legislature to decide whether such a law is warranted.
- Repromulgation should be considered as an alternative way of law making as that would be a usurpation of legislative power by the executive.
- As governments, both at the Centre and States, are violating this principle, the legislatures and the courts should check the practice. That is what separation of powers and the concept of checks and balances means.
- By not checking this practice, the other two organs are also abdicating their responsibility to the Constitution.
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