Ordinance Raj And Misuse Of Constitutional Power
Author: LawSphereX
Category: Constitutional & Human Rights
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ORDINANCE RAJ AND MISUSE OF CONSTITUTIONAL
POWER
Lakshya Agarwal, Symbiosis Law School, Noida Shaswat, Symbiosis Law School, Noida
ABSTRACT
The Indian Constitution outlines the ordinance-making powers of the President and Governors under Articles 123 and 213, allowing them to enact laws during legislative recesses. Originally intended for urgent situations, these provisions have often been misused, leading to an "Ordinance Raj" where executive overreach undermines democratic principles. This paper examines the historical context, constitutional framework, and contemporary misuse of ordinance-making powers in India. It discusses landmark cases like RC Cooper, AK Roy, D. C. Wadhwa, and Krishna Kumar Singh, highlighting judicial attempts to curb this misuse. The analysis reveals how frequent and arbitrary ordinance promulgations erode legislative authority, disrupt the balance of power, and compromise democratic governance.
The paper calls for stricter judicial scrutiny and legislative reforms to ensure that ordinances are used only in genuine emergencies, preserving the integrity of the Constitution and democratic institutions. Keywords: Ordinance Raj, Indian Constitution, executive overreach, democratic governance, judicial review, legislative process.
INTRODUCTION
The Indian Constitution delineates clear boundaries and distinctive roles for each branch of the government. According to its provisions, laws are enacted by the Legislature, followed by execution by the Executive, and interpretation by the Judiciary. There are exceptions to this concept wherein the President and the Governors are empowered by the Constitution to pass legislation on behalf of the legislature if needed, despite the principle of separation of powers being in place in India. This is referred to as the ordinance-making power given to the President and governors under Articles 1231 and 213 respectively. Article 123 gives power to the President to introduce an ordinance when there is an urgent need to enable the welfare of the people and the Parliament is not in session.
Likewise, Article 2132 of the Constitution confers power on the Governor of the State to promulgate an ordinance when the legislative assembly is not in session. It is argued that these provisions are a serious threat to our democracy and hinder the spirit of the Constitution thereby creating an “Ordinance Raj”. Ordinance Raj is a connotation that was used during British Rule. Since the British Rule, the governments of Independent India have also been condemned with similar allegations due to the misuse of their ordinance-making power. It appears that India is ruled majorly by ordinances issued by the ruling party, even though they do not hold a majority in the Rajya Sabha. This is a blatant misuse of the Constitutional power given to the executive. In recent times, the ruling party has introduced several ordinances out of which the majority were not required and baseless.
During the lockdown, the government promulgated 11 ordinances that were enforced amid the COVID–19 outbreak. Out of the 11 ordinances, 3 were related to the subject of agriculture, and 1 dealt with the banking sector which had no relevance during the COVID–19 pandemic. There has also been criticism towards a recent ordinance introduced by the President of India which gave power to the Lieutenant Governor of Delhi over the National Capital Territory, that the power of the Chief Minister may be undermined by this move.
1 INDIA CONST. art. 123
Furthermore, there have been many instances where the government was not justified in signing these temporary laws but it was only a move that would favour the ruling party in the Parliament. This article will discuss in detail the ordinance-making power of the executive and how it is used by the ruling parties in India. It will also highlight the problems regarding the provision of ordinances and how they impact the democratic structure of the country and the way ahead.
ORIGIN OF THE LAW OF ORDINANCE
The laws relating to ordinance date back to 1935 when they were inserted into the Constitution as sections 42 and 43 of the Government of India Act, 1935. This provision empowered the Governor General with the power to enact ordinances if the circumstances are such as to render the promulgation necessary. These provisions were another example of the tools of oppression during the colonial era used to gatekeep power. Yet the provision continued to be a part of the Constitution of India post-Independence. Some members of the constituent assembly like Dr. BR Ambedkar and HM Servai believed that the ordinance was a necessary evil. While some members believed that it hinders personal freedom and Constitutional morality.
Even in modern India, the rule was meant to be used when the circumstances demanded such an action as necessary to safeguard the rights and liberties of the citizens but time and again it has been seen that the power has been violated for political reasons. The Constitution makers aimed to maintain a separation of power between the three organs of the State. Such an arrangement would see the Legislature at the centre and the State as the lawmaking body, the executive as the one that enforces such laws in the country, and the judiciary would interpret and check that the law does not violate the principles of the Constitution and encroach on the rights of the citizens. The executive’s power to issue ordinances is somewhat against this principle of separation of powers as this provision neither works as a check nor as a balance.
3 3 Samrudh Kopparam, Problematisation of the ‘Ordinance’ Raj: A Reflection on the Effect, Consequence, and Misuse of Article 123, SSRN (February 26, 2023). https://ssrn. com/abstract=4370910
NAVIGATING THE THIN LINE BETWEEN EXECUTIVE
AUTHORITY
AND
CONSTITUTIONAL INTEGRITY
Article 123 of the Constitution specifically grants power to the President of India to introduce ordinances in case of urgency when either of the two houses of the Parliament is not in session. The Parliament cannot introduce it. An ordinance can only be promulgated when the Parliament is not in session and it has the same force as that of an Act of a legislature. Even though it stays in force till the legislative session has not begun, it requires to be ratified within 6 weeks of its reassembly. Such an ordinance has a total life span of six months and six weeks from the date of promulgation. After the lapse of this period, if the Parliament is still not in session, it will either lapse or will need to be re-promulgated. The governor of the state is also given the power to promulgate ordinances under Article 2134 when the legislative assembly is not in session.
With a few minor exceptions, the Governor’s power is largely comparable to the President’s. The initiation of an ordinance rests with the Council of Ministers, as the President acts as per their advice. The council of ministers sends forth the ordinance to the President for his assent. He can either give his assent or send it back for reconsideration. The ministers have the discretion of reconsidering it or not and sending it back to the President. Then the President has no choice but to give his assent after he has received it again. The President has the option to withdraw the ordinance and both houses of parliament can also disapprove it, which will imply the loss of the majority of the government. The Constitution makes it clear that the provision is to be used as an exceptional measure in situations that require immediate attention.
However, in practice, ordinances have barely been enacted as an exceptional measure. Their frequent use raises concerns about their misuse as a means to bypass the legislative process and undermine democratic governance. The routine promulgation of ordinances diminishes the role of Parliament and erodes accountability, highlighting the need for greater scrutiny and accountability in their application. 5 Contemporary trends and instances of misuse Promulgation of ordinances was meant to serve the needs of the nation in situations of urgency in the recess of the legislature. Still, mostly it has been used as a tool to bypass the legislative
4 Supra Note 2
procedures wherein the ordinance is not presented in front of the legislature and after the lapse of the validity period is enacted again when the parliament is not in session. Nevertheless, there are certain advantages of this provision when used for the benefit of the nation. One such instance would be the promulgation of the Food Security Ordinance 2011 which was justified because at that time there was an urgent need to provide food to a lot of people and the legislature was not in session to enact a law. However, we have also seen how this power is misused for bypassing the legislative process and for other political purposes. There have been instances where the ordinance is promulgated solely to negate the judgment of a Court of Law.
Such instances include the Scheduled Castes and Scheduled Tribes (Preventi0n of Atr0cities) Amendment Ordinance, 2014, Enemy Property (Amendment and Validation) Ordinance, 2016, and recently the Government of NCT of Delhi (Amendment) Ordinance, 2023. This recent ordinance established the “National Capital Civil Service Authority” which consists of the Chief Minister and two seni0r IAS Officers, enabling them to make decisions by majority vote. This was a reaction to the judgment of the Supreme Court which gave power to the Chief Minister of Delhi, to decide on the matters relating to transfers of IAS officers. Furthermore, during the COVID-19 pandemic, the President issued 11 ordinances which included one in the banking sector i. e. the Banking Regulation (Amendment) Ordinance, and three were associated with agriculture, which were the controversial farm bills.
These ordinances were passed during the lockdown amid the covid-19 which raised significant doubt as to their validity. Even the States have used this power as a tool to surpass the legislative procedures by issuing and re-issuing ordinances. The exclusions from labor laws are a prime example of the misuse of ordinance-making powers. Another example of misuse of authority is the issuance of ordinances again and again i. e. repromulgation of ordinances. This scenario becomes “Ordinance Raj”, in which the executive, unable to make legislation through the proper legislative procedure, assumes the function of the legislature by issuing ordinances. As a result, the ordinance stays in effect for a prolonged period, allowing the legislature to pass any suitable laws.
the Securities Laws (Amendment) Ordinance, 2014, and The Indian Medical Council (Amendment) Ordinance, 2010 are instances of ordinances that have been issued repeatedly despite the Supreme Court’s ruling in
1986 forbidding such actions.6
The Apex Court in the D. C. Wadhwa case condemned such a practice as it went against democratic principles. Hardly 3 years after the judgement the Bihar government passed another ordinance, taking over 429 private schools in the State. This ordinance was not before the State Legislature and was allowed to expire. Later, it was re-promulgated when the legislature was not in session. In 2017, the Supreme Court cleared that the re-promulgation of an ordinance without presenting it before the Parliament would be unconstitutional. The Court emphasized that the power to enact an ordinance must be used as last resort rather than a tool for bypassing the legislature. 7 Implications for democratic governance The debate about the use of ordinances as an instrument for making laws reaches well beyond the passage of the Constitution. In the words of Dr.
BR Ambedkar, ordinance-making power is the power that is to be used when the parliament is not in session. The goal of the Constitution makers was always to establish a division of powers among the three recognized organs of the government. The Constitution has demarcated boundaries within which the three organs namely the Legislature, Executive, and Judiciary have to perform their functions. Every organ is assigned separate and distinctive functions. The legislature is tasked with enacting laws, the executive performs the function of implementing these laws, and the Judiciary acts as the guardian of the Constitution. This is to guarantee that no organ utilizes its power arbitrarily. The democracy and governance of India are negatively impacted in many ways by the growing usage of ordinances.
It diminishes the authority of the legislature to enact laws, also impacting the democratic structure of the country. Ordinances are intended to be used as short-term measures in situations of emergency, and the parliament must approve them within six weeks of the next sitting. Nonetheless, laws have been created regularly by way of ordinances thereby bypassing the legislative process and scrutiny. This results in the erosion of the democratic principles and the government’s responsibility towards the citizens. 6 Shreya, Ordinances promulgated during different Lok Sabhas, PRS India, (Apr 21, 2014), https://prsindia. org/
7 S.K. Agarwala, Review of RE-PROMULGATION OF ORDINANCES: A FRAUD ON THE CONSTITUTION
OF INDIA by D.C. Wadhwa, 25 (1) ILI, 127, 127-135 (1983)
The arbitrary exercise of ordinance-making power poses a significant threat to democratic governance as it disrupts the balance between the three organs of the government. It will allow one branch to overstep its boundaries and diminish the effectiveness of checks and balances. Consequently, the integrity of democratic institutions is compromised, leading to a compromise in transparency in governance. Thus, the arbitrary use of this power not only subverts the constitutional order but also undermines the essence of democracy itself. 8 Further, the responsibility of the government towards the people is also jeopardized by the growing number of ordinances. Ordinances are enacted without examination and discussion by the legislature, which serves as the platform where such laws are to be scrutinized by elected members of the parliament.
Ordinances that sidestep the legislature weaken public trust in democracy and reduce public accountability for the government.
LANDMARK CASES
1. RC Cooper v. Union of India9: The case challenged the “Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969,” which seeks to nationalize 14 banks in India. It was decided that the satisfaction of the President as to the necessity of the situation is subject to question by an aggrieved person because the facts and circumstances do not justify the promulgation of the ordinance. The same restrictions also apply to an ordinance as they do to a legislative act. The Parliament by the 38th Constitutional Amendment added clause (4) to Articles 123 and 213 which gave immunity to the President's “satisfaction”, that it cannot be subject to Judicial Review. However, through the 44th Amendment, the Parliament removed the newly added clause (4) from Articles 123 and 213 which again led to ambiguity relating to the President’s “satisfaction”. 2. A. K. Roy v.
Union of India10: In this case the validity of the National Security Ordinance, 1980 was challenged. The Ordinance provided for preventive detention for up to 1 year without trial. The Court recognized the legitimacy and stated that the subjective satisfaction of the President is the will of the Council of Ministers. It also stated that if the
8 R. Thapar Law or Ordinance? 9(47), EPW, 1930–1931 (1974).
9 Rustom Cowasjee Cooper v. Union, AIR 1970 SC 1318
person questioning the President's “satisfaction” can prima facie prove that the circumstances were not such as to require the promulgation of the ordinance, then it could be challenged in the courts. 3. D. C. Wadhwa v. State of Bihar11: A study was presented by D. C. Wadhwa in which he brought out the fact that the Bihar government between 1967 and 1981 had promulgated and re-promulgated Ordinances 256 times. They were not presented before the State legislature for scrutiny and allowed lapse after which they were re-promulgated. As a result, D. C. Wadhwa filed a PIL to check such a practice that was disrupting the democratic process. The Court condemned such a practice and held that the executive cannot overreach the functions of the legislature and that it should respect the concept of separation of powers which lies at the core of the Constitutional scheme.
The Court declared these ordinances unconstitutional and held that this process of re-promulgation of ordinances is an attack on the democratic governance of the country. 4. Krishna Kumar Singh v. State of Bihar12: The Court, in this case, struck down a bunch of ordinances re-issued by the State of Bihar barely 3 years after the judgment in the D. C. Wadhwa case, which saw them taking control over several private schools in Bihar. The Court asserted that the circumstances were not such as to justify the ordinance-making power of the Constitution. it said that such practice defeats the Constitutional scheme where there are defined functions for every organ of the government and that the organs have to work within that framework.
The Court held that the power of the executive to issue ordinances is not absolute and can be challenged based on a lack of satisfactory circumstances to enable the promulgation. The Court also said that it would not look upon the sufficiency of the material but would examine the fact, whether the satisfaction of the executive constitutes a fraud on the Constitution or whether the circumstances were such as to render the promulgation necessary.
ADDRESSING THE CHALLENGES
The landmark decisions in the case of “R.C. Cooper” and “D.C.Wadhwa” emphasize the need for limiting the widespread misuse of executive authority through the enactment of ordinances.
11 D.C. Wadhwa and Ors. v. State of Bihar and Ors., AIR 1987 SC 579
12 Krishna Kumar Singh and Ors. v. State of Bihar, AIR 1998 SC 2288
These decisions act as important constraints on the unrestrained exercise of power, underlining the concept of democratic governance and the importance of parliamentary proceedings. While promulgating ordinances may appear to be an instantaneous remedy to address pressing concerns, it is important to remember that the legislature is the cornerstone of our democracy. Therefore, laws should be enacted following the parliamentary procedure despite the difficult nature of the legislative discussion because then the laws passed are given critical thought and deliberate speaking. As a result, arbitrary ordinances undermine not just the integrity of the legislative process but also the fundamental principles of the Constitution of India. Thus, the ordinance-making power of the executive should be used keeping in mind the core values and principles enshrined in the Constitution.
the power should be used only in exceptional circumstances that require immediate attention to protect the rights of the citizens. Hence, to protect democracy and the spirit of the Constitution, we must proceed as per the wisdom of the Courts and uphold the sanctity of the legislative process.
CONCLUSION
As per the Constitution of India, the power to enact laws lies with the legislative body both at the centre and state. However, the Constitution grants special powers to the executive to promulgate ordinances as per Articles 12313 and 213. So, India does not follow the principle of separation of powers in a strict sense. This legislative power of the executive is not similar to that of the legislature but is a power that enables them to make laws only in situations of emergency. The main contention lies concerning the effect of re-promulgation of ordinances which impacts the democratic setting of the country as a whole. Though the Constitution prohibits such practice, it has been exercised for years. While ordinances are subject to judicial review, the Courts have also not been able to put a stop to the re-promulgation of ordinances. The judgments of D.
C Wadhwa and Krishna Kumar have highlighted the impact of re-promulgation on the governance of the country but they fail to clarify the ambiguity related to the phrase “exceptional circumstances” which allows such promulgation. There is a need for a
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comprehensive judgment that provides a clear picture of the interpretation of the provisions dealing with the issuance of ordinances to stop the misuse of this power.