Ordinances are temporary laws which are enacted by the Central or State executive during the recess of their respective Legislatures in case of emergent situations. An ordinance is issued by President on the advice of Union cabinet as provided by Article 123 of the Constitution and similarly, by the Governor in States on the aid and advice of his cabinet as provided by Article 213.
The intent of the Constitution-makers behind enacting this provision can be traced by the following words of Dr. B.R. Ambedkar, “My submission is that it is difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation which it must deal with ex hypothesi. It has not got the power to deal with that in the existing code of law. The emergency must be dealt with and it seems to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because again ex hypothesi, the Legislature is not in session. Therefore, it seems to me that fundamentally there is no objection to the provisions contained in Art. 123.”
In A.K. Roy v. UOI, it was held that while the law making power under the Constitution of India is vested in Parliament by Article 107, Article 123 empowers the President to legislate by ordinances to meet with any circumstances that require immediate action, when Parliament or either House thereof is not in session.
In R.K. Garg and Ors. v. Union Of India (UOI) and Ors., the Supreme Court has justified this legislative power conferred upon the Executive on the ground that it is necessary to meet urgent situation such as taxing laws or other laws being declared void by the Court at a time when Parliament is not in session, and valid law to take its place is promptly required.
Regarding this Article, Hon’ble Member H.V. Kamath in the Constituent Assemby was of the view – “We expect our President to be a Constitutional President and that he would always act upon the advice or direction of the parliament. But if the President is inclined to dictatorship, or to exercise dictatorial powers, who know what the future has in store for us?” (CAD Vol. VIII, p. 205) It was assured by Dr. Ambedkar that there need not be such apprehension as the President does not possess any independent power and acts on the aid and advice of the Cabinet.
But, ironically, when the history of ordinance making power is traced since the commencement of Constitution, even a common man can infer that it has not been used sparingly and only in emergent situations which could not be delayed till the next meeting of the Legislature which was the original intent of the Article. This is not just true for ordinances promulgated by the President who acts on aid and advice of the Union Council of Ministers but, also for the ordinances promulgated by the governors in their respective States by acting on the aid and advice of their respective council of Ministers. Unfortunately, the apprehensions of Mr. Kamath have proved to be true and assurance that President is not independent by Dr. Ambedkar has itself paved the way for Constitutional controversies in the country as the main feature of Indian democracy is that it has no strict separation of powers and executive and legislature are inseparable. The council of ministers in the executive who aid and advice the President are also the Members of Parliament representing majority of the ruling government and thus, the consequences might be that what legislature is not able to do in the House directly can do that indirectly through the ordinances and it is not just an apprehension but, there are countless examples to this.
The glaring fact is that the Constitution does not explicitly bars the re-promulgation of any ordinance and the absence of such explicit bar has been exploited time and again by the Union as well as the State governments. Who can forget the Ordinance Raj in Bihar that was quite later on after it prevailed was criticised by Supreme Court in its judgment of Dr. D.C. Wadhwa v. State of Bihar when the Bihar government continued to re-promulgate its various ordinances for years continuously without laying it down before the Legislature. Not only this, but promulgating the necessity of ordinances has always been debatable. For instance in 1997, TRAI ordinance was promulgated and then, enacted by the Act of Parliament. It was clearly said by the Minister in charge that they opted the route of ordinance “…we were facing difficulties in attracting private investment without an authority like the TRAI. Private investors… were not convinced about our ongoing processes of privatisation and liberalisation.” Now, it is hard to convince oneself that it was an urgent situation and required an immediate action. While promulgating the SARFAESI ordinance in 2002, the Minister in charge refused to give any reasons for the ordinance. No one can forget the ordinance by Indira Gandhi government in 1969 to nationalize Banks just a day before Parliament had to come in session. Similarly, the Electricity Regulatory Commissions Ordinance of 1998 was promulgated just a day before the next session of Parliament had to be convened. The National Commission for Minority Educational Institutions (Amendment) Ordinance, 2006, was promulgated in January 2006, even though Parliament was to convene from February 16, 2006. And, again the Indian democracy was deployed with a satisfactory answer to such a Constitutional transgression. Such examples have time and again proved that the uninterrupted route of ordinance in India has caused much menace.
However, the position has changed with time though not absolutely and the route of this ordinance making power can be interrupted by the process of Judicial Review. In A.K. Roy v. Union of India and R.C. Cooper v. Union of India (bank nationalisation case), the Apex Court has held that ordinance-making power is a legislative power given to the President and therefore, is not similar to the exercise of his executive powers. Also, ordinances are also “law” under Article 13 and therefore, can be reviewed in the Courts of law. Using the same reasoning, the Supreme Court reached damaging conclusions in Venkata Reddy v. State of Andhra Pradesh and K. Nagaraj and Ors. v. State of Andhra Pradesh. This is not just the hail for judiciary but, also a symbol of healthy, growing and efficient democracy.