Govt’s power to promulgate, repromulgate ordinances

Context: 

Recently, the central government promulgated an Ordinance that undid the unanimous verdict of a five-judge Constitution Bench of the Supreme Court, which gave the government of Delhi control over the transfer and posting of officials in the National Capital Territory (NCT), except with regard to public order, police, and land.

What is an ordinance?

• An ordinance is any law promulgated by the President in those circumstances when the Indian parliament is not in session.

Constitutional provisions under Article 123:

• The President has certain law-making powers that aid him to promulgate ordinances when either of both the Houses of Parliament is not in session which makes enacting laws in the parliament out of question.
• An Ordinance can be issued on any subject that the Parliament has the power to legislate on. In that way, the president’s powers are limited in the same way as the Parliament is.
• An ordinance can be retrospective, that is it can be legislated from before the time it is approved.
• An ordinance promulgated when Parliament is in session is considered null and void.
• The Ordinance in order to stay a law must be approved by the Parliament within six weeks from its reassembly. Its existence ceases in case the parliament takes no action within six weeks from its reassembly. 
• Acts and laws and happenings that took place under the ordinance remain active till the time it lapses.
• The governor of a state can also issue ordinances under Article 213 of the Constitution of India, when the state legislative assembly is not in session.

Re-promulgation of an ordinance by the Centre in the recent years

• 2013-2014: The securities laws ordinance was repromulgated for 3 years
• 2014-2015: The land acquisition act which was issued in the year 2014 was repromulgated twice in the year 2015
• 2016-2019: The Indian medical council ordinance was issued in 2018 and was repromulgated in 2019
• 2020-2021: The Commission for Air Quality Management in the National Capital Region and Adjoining Areas Ordinance has recently in this year been repromulgated.

Issues Related

• Usurpation of powers by the Executive: When an ordinance is repromulgated the life of the ordinance is extended which directly leads to usurpation of powers.
• Against Separation of powers: 

1. 1. The mechanism of ordinance is not an alternative to the parliament legislature instead, it is merely just a provision in case of emergency . 
   2. The Re-promulgation of the ordinances allows the executive to make permanent legislation without any debate or discussion by simply repromulgating the ordinances.

Verdicts of Supreme Court on misuse of the power:

D.C. Wadhwa vs. State of Bihar case:

• The State of Bihar’s promulgating and re- promulgating ordinances were challenged. 
• Between the year 1967-81, 256 ordinances were promulgated and then re-promulgated and some among them remain in existence for up to 14 years.
• The Supreme Court observed that the power to make an ordinance is to meet an extraordinary situation and it should not be made to meet political ends of an individual.
• If the government wishes for the Ordinance to continue in force beyond the six-week period, it has to go before the Legislature, which is the constitutional authority entrusted with law-making functions.
• It would most certainly be a colourable exercise of power for the Government to ignore the Legislature and repromulgate the Ordinance while continuing to regulate the life and liberty of its citizens through Executive-made Ordinances.

Krishna Kumar Singh v State of Bihar case, 1998:

• In this case, the Supreme Court struck down many ordinances stating that no particular basis for the exercise of the Ordinance making power of the President had been shown.
• The court clarified that there might be circumstances permitting the re-promulgation of an Ordinance — however, repeated re-promulgations without bringing the Ordinance to the legislature would usurp the legislature’s function, and would be unconstitutional.

News Source: Indian Express