The Ordinance Route Is Bad, Repromulgation Worse

Context: The central government re-promulgated the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, raising questions about the practice of issuing ordinances.

About Ordinance Powers

• Constitutional provision: Constitution permits Central (Article 123) and State governments (Article 213) to make laws (as an emergency provision) when Parliament (or State Legislature) is not in session.
• Safeguard: Automatic expiry after six weeks from the time Parliament (or State Legislature) next meets.

An overview of misuse of Ordinances

• Frequent use: In the 1950s, central ordinances were issued at an average of 7.1 per year, peaked in the 1990s at 19.6 per year, and declined to 7.9 per year in the 2010s.
  • Still, 16 ordinances were issued in 2019, 15 in 2020, and four till now (April 2021) this year.
  • Bihar issued 256 ordinances between 1967 and 1981, of which 69 were re-promulgated several times, 11 kept alive for more than ten years.
• Recent examples:
  • In 2013 and 2014, the Securities Laws (Amendment) Ordinance was promulgated three times.
  • Ordinance to amend the Land Acquisition Act 2014, and re-promulgated twice in 2015.
  • The Indian Medical Council Amendment Ordinance in 2018, and reissued in 2019, as it was passed by only one House of Parliament in intervening session.
  • Kerala ordinance to set up a Kerala University of Digital Sciences, Innovation and Technology promulgated five times in 2020-21.

Judicial interventions and legal clarifications

• C. Wadhwa v State of Bihar case, 1986: The SC held it is a colourable exercise of power for the government to ignore Legislature, thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Executive.
• Krishna Kumar Singh v State of Bihar case, 2017: Re-promulgation of ordinances is a fraud on Constitution and a subversion of democratic legislative processes.

Conclusion:

• 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.
• Re-promulgation is not permitted as that would be a usurpation of legislative power by the Executive.
• Need to uphold checks and balances upholding the separation of power as a responsibility of legislatures and the courts.