On the first working day of the new year, a seven-judge bench of the Supreme Court, in a landmark judgement, said that repromulgation of ordinances was impermissible under the Constitution and that the effects of a lapsed ordinance would continue only if they were physically impossible to reverse or if were manifestly in the public interest to let them remain.
While the Supreme Court decision pertains only to the technicalities of ordinance-making powers, given the frequent controversies relating to the use and abuse of this power, there exists a case for abolishing it entirely.
An ordinance is a decree that can be issued by the president in cases where urgent or immediate action needs to be taken but Parliament is not in session. After an ordinance is promulgated, it has the same effect as any other law until the next Parliament session is convened. The ordinance then has to be placed before the legislature, which can pass an identical bill to replace it. If this does not happen within six weeks of Parliament reconvening, the ordinance lapses. Similarly, state governors can also promulgate ordinances when the state assembly is not in session.
Under the Indian Constitution, there is a strict separation of powers between the three arms of the State: the legislature, the executive and the judiciary. The legislature, which consists of elected representatives in Parliament and state assemblies, enacts laws. The executive – the council of ministers at the Centre and in each state – is tasked with implementing these laws while the judiciary adjudicates the enforcement actions under the laws. Neither organ can ordinarily perform the function of the other.
Ordinance making powers conferred upon the president and the state governor are thus unique because they depart from the usual separation of powers. The most important restriction on the use of this power is that circumstances must exist that render it necessary for the government to take immediate action when the legislature is not in session.
Abuse of power
However, over the years, the power to promulgate ordinances has been consistently abused. On many occasions, it has been used for the sake of political convenience even when there is no need for immediate action. For instance, Indira Gandhi in 1969 passed the bank nationalisation ordinance, transferring the ownership of 14 commercial banks to the state, just two days before the Parliament was to convene.
More recently, Prime Minister Narendra Modi’s government refused a discussion on demonetisation in Parliament as it disagreed with the Opposition’s terms on the discussion and failed to introduce any bill to give the move to ban high-value currency notes statutory backing. However, on December 28, a fortnight after the winter session of Parliament ended, an ordinance was promulgated giving legislative backing to the exercise.
There are many more such examples. In 2003, under the Congress-led United Progressive Alliance government, the National Tax Tribunal Ordinance was promulgated. However, that there was no need for immediate action became clear when, despite the ordinance, the tribunal had not been made operational by the time Parliament considered it, a few months later. In 2014,an ordinance was also promulgated for the purportedly urgent matter of ensuring that a newly elected prime minister Modi gets the principal secretary of his choice.
The origin of the ordinance-making powers can be traced back the colonial era, and more precisely, to the Government of India Act, 1935. Section 42 of this Act stated that the governor general could issue ordinances while the central legislature was in recess. When independent India’s Constitution was being drafted, some members of the Constituent Assembly such as Hriday Nath Kunzru, HV Kamath and Professor KT Shah objected to the inclusion of ordinance-making powers as being anti-democratic with a high likelihood of abuse. Dr BR Ambedkar, however, saw it as a necessary evil and justified its inclusion by stating:
“My submission to the house is that it is not 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 arisen, which it must deal with Exhypothesi 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 a 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.”
Thus, the idea underlying the ordinance-making power was that when a law needs to be enacted urgently, it should be possible to do so. In the late 1940s, when the Constitution was drafted, it would have been impossible to call an emergency session of Parliament at short notice because in those days, many MPs, especially those from the South and the Northeast, would have needed to undertake long journeys by various means of transport to reach New Delhi for the session.
However, in the 21st century, this is no longer the case. It would be entirely practical to hold an emergency session of Parliament or Legislative Assembly, in which MPs or legislators participate through video conferencing and cast their votes online or on an app-based platform. If need be, a special videoconferencing centre could be set up in each district for such emergency sessions.
Similar provisions already exist in company law. Directors are allowed to participate in board meetings through video conferencing and shareholders can cast their votes online without physically attending the meetings where the issue is taken up for voting.
If such systems are implemented in the legislative process, ordinance-making powers could be repealed, putting to rest all the concerns and controversies surrounding them and replacing them with emergency digital Parliament sessions. If the government truly wants to usher in a Digital India, this would be a good step in that direction.
Sagar Godbole is an associate at Trilegal. Views expressed here are personal.