By Vivek Agnihotri
The government promulgated the Commission for Air Quality Management in the National Capital Region and Adjoining Areas Ordinance, 2020, on October 28, 2020 to set up a dedicated commission to improve air quality. In terms of the provision of Article 123, the Ordinance lapsed six weeks after the start of the Budget Session on January 29, 2021, as the Bill to replace it was not even brought before Parliament, let alone passed within that prescribed time. Thereafter, on April 13, 2021, the government re-promulgated the ordinance. This raises questions about the unique practice of issuing ordinances to make law and of re-issuing them in the absence of their ratification by Parliament.
Way back in 1950, when the Constitution had just started its baby steps, and before Parliament came into existence, GV Mavalankar, the first Speaker of the Lok Sabha, had protested to Prime Minister Jawaharlal Nehru about the government’s inherently “undemocratic” practice of promulgating ordinances instead of bringing Bills before Parliament. Twenty-one ordinances were promulgated that year, which gave the undesirable psychological impression that the government was carried on by ordinances.
This issue has remained unresolved by the executive. The unfortunate saga of the three farm acts too began with the promulgation of three ordinances on June 5, 2020. “The fault is not in our stars, but in ourselves,” said Cassius in Julius Caesar. The Constitution provides for it, but it has been left to the executive to use it at will.
The Constitution, in Article 123, makes provision for legislative powers of the president. Going by the doctrine of separation of powers, as practised in parliamentary democracies, particularly the Commonwealth countries, this provision is quite unique. However, in another sense, it is not unexpected as it derives from an identical provision in the Government of India Act, 1935, which preceded the Constitution.
According to the Constitution, the president may issue an ordinance to enforce the provisions of a bill introduced in and pending before a House or a Bill already passed by one House but pending in the other one or an entirely new matter to be replaced subsequently by a Bill to be brought before both Houses. An ordinance has a shelf-life and lapses if a bill replacing it, with or without amendments, is not passed by both Houses within six weeks of the reassembly of Parliament following promulgation of the ordinance. Governors have comparable powers (Article 213) in this regard.
The ordinance etiquette practised in the early days of the Constitution required that it should not be issued after issue of summons convening a Parliament session if a bill on the subject is pending or is ready but has not been introduced. But these niceties have been given the go-by over time. There have been instances when one of the Houses has been prorogued to enable issuing of an ordinance as the Constitution prescribes that an ordinance cannot be issued if both the Houses are in session. On the other hand, occasionally, the Parliament has reaffirmed its supremacy by either not allowing the bill to replace the ordinance to be passed within the prescribed time-frame or agreeing to refer it to the Department-related Parliamentary Standing Committee for examination and report, thus resulting in its lapsing.
The Rules of Procedure and Conduct of Business in the two Houses contain identical provisions, which say that whenever a bill seeking to replace an ordinance is introduced, a statement explaining the circumstances which had necessitated legislation by ordinance too should be placed. The same procedure has to be followed in case of ordinances which embody, wholly or partly or with modification, the provisions of a bill pending before either of the Houses.
After the promulgation of the ordinance, any member of either House may give notice of a statutory resolution seeking disapproval of the ordinance. In case such a notice is admitted, the resolution is listed and moved before the motion for consideration of the bill seeking to replace that ordinance. However, the statutory resolution and the motion for consideration of the bill are generally discussed together. After the discussion, the resolution is put to vote, and if the resolution is adopted, the bill replacing the ordinance falls through. On the other hand, if the statutory resolution is negative, the motion for consideration of the bill is put to vote and further stages for its consideration and passage are followed as usual.
Generally, an ordinance replacing a bill is not sent to a Department-related Parliamentary Standing Committee for examination and report, mainly because an ordinance, unless replaced by a bill passed by both the Houses, ceases to operate on the expiry of six weeks from the reassembly of Parliament. Government priority, therefore, remains to get the bill passed within the stipulated period.
Even though the power of the president to issue ordinances is, in the nature of things, exceptional in terms of the doctrine of separation of powers, there has been only one year (1963) when no ordinances were issued. In the first year itself, nine ordinances were issued. The number of ordinances has waxed and waned over the years. But, as the Table (see box above) reveals, there have been years when ordinances have had a field day, making the legislative powers of Parliament look somewhat redundant.
The issuing of such a large number of ordinances in these years is, to say the least, a sad commentary on parliamentary oversight of the executive. It shows that in those years, Parliament, to a certain extent, relinquished its legislative authority in favour of the executive. The judiciary too, in terms of the scheme of the Constitution, cannot enquire into the motives of the government in issuing ordinances or question the propriety of issuing them. It can intervene only if an ordinance is ultra vires the legislative powers of Parliament, unconstitutional or the power has been exercised by the executive in a mala fide or perverse manner.
Coming to the constitutional provisions relating to a Joint Sitting, Article 108 says that a Joint Sitting of both Houses may be convened by the president under one of the circumstances:
(i) If there is a disagreement between the two Houses on a bill (other than a Money Bill), including rejection of a bill passed by one House by the other House
(ii) if a bill passed by one House is pending for more than six months in the other House. The Speaker of the Lok Sabha presides over the Joint Sitting of the Houses. The last occasion when this provision of the Constitution was invoked was to pass The Prevention of Terrorism Bill, 2002, seeking to replace the Prevention of Terrorism Ordinance. Then, too, the NDA was in power.
Over the years, Supreme Court has not taken kindly to the practice of indiscriminate promulgation of ordinances. In Dr DC Wadhwa and Ors vs State of Bihar (1987), the Court observed that the power to promulgate ordinances was used by the government of Bihar on a large scale and the same ordinances which had ceased to operate after the session of the state legislature was prorogued and re-promulgated, containing substantially the same provisions almost in a routine manner.
The Court further remarked that the power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends”.
It is contrary to all democratic norms that the executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the governor and an ordinance issued by the governor in exercise of this power must, therefore, of necessity, be limited in point of time. The executive cannot, by resorting to an emergency power exercisable by it only when the legislature is not in session, take over its law-making function.
That would be clearly subverting the democratic process which lies at the core of our constitutional scheme; for then, the people would be governed not by the laws made by the legislature, as provided in the Constitution, but by laws made by the executive. The facts of the case, the Court held, clearly show that the executive in Bihar has almost taken over the role of the legislature in making laws, not for a limited period, but for years together in disregard of the constitutional limitations. This is clearly contrary to the constitutional scheme and must be held to be improper and invalid.
Similarly, in Krishna Kumar Singh vs The State of Bihar (2017), the Supreme Court held that the power which has been conferred by Article 123 is conditional. It can be exercised only when the legislature is not in session and is subject to the satisfaction of the president. That satisfaction under Article 123 and of the governor under Article 213 is not immune from judicial review, particularly after the amendment brought about by the 44th amendment to the Constitution. The test is whether the satisfaction is based on some relevant material. The court in the exercise of its power of judicial review will scrutinise whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review, in other words, would enquire into whether there was no satisfaction at all.
However, judicial pronouncements and observations notwithstanding, the central and state governments have been merrily promulgating and re-promulgating ordinances. As late as 2020, the central government had issued 15 ordinances.
As far as state governments are concerned, in 2020, Kerala issued 81, while Karnataka 24 and Maharashtra 21 ordinances. As far as re-promulgation of ordinances is concerned, in Dr DC Wadhwa and Ors. (supra), the Supreme Court had, in 1987, observed that there was not a single instance of the president re-promulgating an ordinance. But this is no longer true. Again, among states, Bihar is not the only one to do so. The government of Kerala has re-promulgated the ordnance relating to the setting up of the Kerala University of Digital Sciences, Innovation and Technology five times between January 2020 and February 2021.
—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012