Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes

Supreme Court: Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 judge bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Dr. D.Y. Chandrachud, J writing down the majority judgment for himself and S.A. Bode, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ, laid down the principles for promulgation of ordinances as follows:

  • The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative and conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action;
  • An Ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must be laid before the legislature; and it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn. Also, The expression “cease to operate” in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void. An ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an act of the legislature of the state assented to by the Governor (Article 213(3)). The framers having used the expressions “cease to operate”,  “void” separately in the same provision, they cannot convey the same meaning;
  • The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213;
  • The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. Laying of the ordinance before the legislature is mandatory because the legislature has to determine:

(a) The need for, validity of and expediency to promulgate an ordinance;

(b) Whether the Ordinance ought to be approved or disapproved;

 (c) Whether an Act incorporating the provisions of the ordinance should be enacted

  • The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process;
  • No express provision has been made in Article 123 and Article 213 for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate. The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity.
  • The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles.

Madan B. Lokur, J, writing down his minority view said that there is no universal or blanket prohibition against re-promulgation of an Ordinance, but it should not be a mechanical re-promulgation and should be a very rare occurrence. There could be situations, though very rare, when re-promulgation is necessary. T.S. Thakur, CJ, after going through both the views, said that there may indeed be situations in which a repromulgation may be necessary without the ordinances having been placed before the legislature. Equally plausible is the argument that the constitution provides for the life of ordinances to end six weeks from the date of re-assembly of the legislature, regardless whether the ordinances has or has not been placed before the house. Leaving the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open, he said that regardless whether the requirement of placing the ordinance is mandatory as held by Chandrachud, J. or directory as declared by Lokur J., the repeated repromulgation of the ordinances were constitutionally impermissible and a fraud on the powers vested in the executive. [Krishna Kumar Singh v. State of Bihar, 2017 SCC OnLine SC 10, decided on 02.01.2017]

One comment

  • Re-promulgation of an ordinance amounts to colourable exercise of power by the executive in that, it does indirectly what it cannot do directly. The Executive resorting to ordinance route, especially its re-promulgation, is clear usurpation of law making powers of the Legislature. The Apex Court in D.C.Wadhwa v Government of Bihar (1987) 1 SCC 378 had laid down that “In future whenever an ordinance is made and the Government wishes to continue the provisions of the ordinance in force after the assembling of the legislature, a Bill will be brought before the legislature for enacting these provisions into an Act. There must not be ordinance- raj in the country. ” Despite these judicial pronouncements there has been a plethora of re-promulgated ordinances in the last thirty years in complete disregard of the Court’s decision. As a welcome step, the Court, in the case on hand, has declared that “The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review….”

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