Cecily Zamora
In India, ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet, without the consent of the legislature. They are only issued when Parliament is not in session and are used to enable the government to take immediate legislative action. Ordinances can be controversial, with critics arguing that they are an undemocratic path to lawmaking. They can be challenged in court and are subject to the same constitutional limitations as an Act of Parliament.
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What You'll Learn
The President's role
The President of India has the power to issue ordinances, or temporary laws, under Article 123 of the Indian Constitution. This power is intended to facilitate efficient and pragmatic governance, enabling the President to take immediate legislative action when one or both houses of Parliament are not in session.
Ordinances issued by the President have the same force and effect as an Act of Parliament. However, they are temporary and cease to operate if Parliament does not approve of them within six weeks of reassembling or if disapproving resolutions are passed by both Houses. The President cannot promulgate an ordinance without the recommendation of the Union Cabinet or Union Council of Ministers, and the ordinance cannot violate the Fundamental Rights of Indian citizens as outlined in the Constitution.
The President's ordinance-making power is a unique feature of the Indian Constitution, but it has also been a subject of debate and controversy. Some argue that it is an undemocratic path to lawmaking, which usurps the function of the legislature. There have been instances where ordinances have been re-promulgated multiple times without being placed before the legislature, raising concerns about the circumvention of the legislative process.
The Supreme Court of India has also expressed its stance on the issue, with judgments that highlight the necessity for judicial intervention and the requirement for 'immediate action' when promulgating ordinances. The 38th Amendment Act initially stated that the President's satisfaction in promulgating an ordinance was final, but this was later reversed by the 44th Amendment, making the President's satisfaction justiciable.
In conclusion, the President's role in ordinance law in India is a significant one, allowing for immediate legislative action when Parliament is not in session. However, it is a power that must be exercised with caution and within the boundaries set by the Constitution to ensure good governance and respect for the separation of powers.
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The Governor's role
In India, an ordinance is a piece of legislation enacted by a non-legislative authority, typically the executive branch of government, when the legislature is not in session or when urgent action is required. Ordinances are intended to enable the executive to make laws when the legislature is unable to do so. They have the same force and effect as an Act of Parliament but are temporary in nature.
The Governor of a state in India has the power to issue ordinances under Article 213 of the Indian Constitution. This power is similar to that of the President, who can issue ordinances at the central level under Article 123. The Governor's ordinance-making power is intended as a tool for efficiency and necessity, allowing the state to respond to unforeseen situations or urgent matters.
The Governor can issue an ordinance when the State Legislative Assembly is not in session or when either of the two Houses in states with bicameral legislatures, is not in session. This power is not without limits, however. The Governor cannot amend the Constitution through an ordinance, and any ordinance that attempts to make provisions that would be invalid under the Constitution shall be void. Additionally, the Supreme Court has held that the ordinance-making power should be used only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.
To issue an ordinance, the Governor must be satisfied that circumstances exist that require immediate action. The ordinance will then have the same force and effect as an Act of the Legislature of the State assented to by the Governor. However, the ordinance must be laid before the Legislative Assembly and will cease to operate at the expiration of six weeks from the reassembly of the Legislature unless it is approved by the state legislature. If the government wishes for the ordinance to continue in force beyond the six-week period, it must be approved by the Legislature.
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Parliamentary approval
Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet. They are only issued when Parliament is not in session and cannot take away any rights of citizens that are guaranteed by the Fundamental Rights of the Indian Constitution. Ordinances enable the Indian government to take immediate legislative action.
The President's ordinance-making power is derived from Article 123 of the Constitution of India, which grants the President certain law-making powers to promulgate ordinances during the recess of Parliament. The Governor of a state has similar powers under Article 213 and can issue ordinances when the state legislative assembly is not in session.
The process of enacting an ordinance involves the President acting on the advice of the Council of Ministers. The President's satisfaction regarding the necessity of an ordinance is crucial, as it was challenged in the R.C. Cooper v. Union of India case in 1970. The 38th Amendment Act inserted a clause stating that the President's satisfaction is final and cannot be questioned. However, the Supreme Court held that the President's satisfaction is not immune from judicial review and can be challenged.
Now, focusing on parliamentary approval: Ordinances must be approved by Parliament within six weeks of reassembling to remain in force. If Parliament does not approve within this timeframe, the ordinances cease to operate. Additionally, if disapproving resolutions are passed by both Houses of Parliament, the ordinances will also lapse. This process ensures that ordinances are subject to parliamentary scrutiny and approval, even though they are promulgated without the initial consent of the legislature.
The role of Parliament in approving ordinances is essential to maintain a balance between the executive and legislative branches of the government. While ordinances provide the President with the ability to take immediate legislative action, they are intended as temporary measures. The requirement for parliamentary approval helps prevent the excessive use of ordinances and reinforces the principle of separation of powers.
In conclusion, while the President of India has the power to promulgate ordinances, they are subject to parliamentary approval. This approval process ensures that ordinances are aligned with the will of Parliament and do not undermine the legislative process. The dynamic between the executive and legislative branches, as facilitated by the ordinance-making process, allows for swift legislative action while maintaining democratic principles.
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Judicial review
In India, ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet. They are only issued when Parliament is not in session and enable the government to take immediate legislative action. Ordinances are temporary and cease to operate if Parliament does not approve of them within six weeks of reassembling, or if disapproving resolutions are passed by both Houses.
The President's ordinance-making powers have been subject to significant debate and judicial review, particularly regarding the necessity for 'immediate action' and the granting of such powers to the executive, given the principle of separation of powers. The Indian Constitution grants the President certain law-making powers under Article 123, and the Governor may also issue ordinances under Article 213 when the state legislative assembly is not in session.
In R.C. Cooper v. Union of India (1970), the Supreme Court held that the President's satisfaction regarding the necessity of an ordinance is not immune from judicial review and can be challenged. This case pertained to the Banking Companies (Acquisition of Undertakings) Ordinance, 1969, which nationalised 14 major banks in India. The Court affirmed that an ordinance is subject to the same constitutional limitations as an Act of Parliament and cannot violate fundamental rights or other constitutional provisions.
The boundaries of judicial review have been further widened in more recent cases. In 2017, a Constitution Bench of the Supreme Court, led by Chief Justice T.S. Thakur, examined the constitutionality of seven successive re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance of 1989. The Court confirmed that "re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes." This decision affirmed the earlier D.C. Wadhwa judgment, which set out the dos and don'ts of promulgation.
In its 2017 judgment, the Supreme Court explicitly stated that the President's and Governor's satisfaction under Articles 123 and 213, respectively, is not immune from judicial review. This means that the Court can examine whether the President or Governor was motivated by an "oblique motive" to bypass the Legislature and promulgate an ordinance. If such an ulterior motive is found, the act would amount to a fraud on their powers.
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Immediate action
Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet. They can only be issued when Parliament is not in session, and they enable the Indian government to take immediate legislative action.
The President cannot promulgate an ordinance unless they are satisfied that there are circumstances requiring 'immediate action'. The ordinance-making power of the President is derived from Article 123 of the Constitution of India, which grants the President certain law-making powers to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.
The Governor of a state can also issue ordinances under Article 213 of the Constitution of India when the state legislative assembly is not in session. The powers of the President and the Governor regarding ordinance-making are broadly comparable. However, the Governor cannot issue an ordinance without instructions from the President in certain cases.
Ordinances must be approved by Parliament within six weeks of reassembling; otherwise, they will cease to operate. They will also lapse if disapproving resolutions are passed by both Houses of Parliament. The Supreme Court of India has emphasised that the power to issue an ordinance should be treated as an emergency measure and not as a means to bypass the legislature.
In conclusion, ordinances in India are a way to facilitate good governance and take immediate legislative action when Parliament is not in session. The President and, in some cases, the Governor have the power to promulgate ordinances, but these ordinances must be approved by Parliament within a certain timeframe and are subject to judicial review and legal challenge.
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Frequently asked questions
Ordinances are laws that are promulgated by the President of India on the recommendation of the Union Cabinet, and have the same effect as an Act of Parliament.
Ordinances can be introduced when Parliament is not in session, or when one of the two houses of Parliament is not in session.
Ordinances cease to operate if Parliament does not approve of them within six weeks of reassembling. The maximum validity of an ordinance is six months and six weeks.
No, ordinances cannot take away any rights of citizens that are guaranteed by the Fundamental Rights of the Indian Constitution.
Some examples of ordinances in India include:
- The Citizenship (Amendment) Ordinance, 2015
- The Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015
- The Motor Vehicles (Amendment) Ordinance, 2015
