President’s Ordinance Power: Decoded

 

The Government is going by the Ordinance route for realising food security act and now amendment in SEBI’s power.Here we explain what an ordinance is, how it is made and with what frequency it is used.

What is an ordinance and who makes it?

Under the Constitution, the power to make laws rests with the legislature. However, in cases when Parliament is not in session, and ‘immediate action’ is needed, the President can issue an ordinance. An ordinance is a law, and could introduce legislative changes.

The most important power of the president is perhaps to promulgate ordinances under Art 123. The promulgation of an ordinance is not necessarily connected with an ’emergency’ but issued by the president in case he is convinced that it is not possible to have the parliament enact on same subject immediately and the circumstance render it necessary for him to take “immediate action” [Art 123(1)].

However such an ordinance must receive parliamentary approval within six weeks of the next session of the parliament, otherwise it shall become invalid. Since the ordinance-making power is to be exercised by the president on the ‘aid and advise’ of the council of ministers [Art 74], the power is often misused.

Under Article 123:  Power of President to promulgate Ordinances during recess of Parliament

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance

(a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President,  where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

The Supreme Court has clarified that the legislative power to issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an emergent situation’.

An example of immediacy can be seen in the ordinance passed in 2011 to give IIIT – Kancheepuram the status of an institute of national importance so that students could be awarded their degrees on completion of their course. Another example is when the President issued the Criminal Law (Amendment) Ordinance on February 3, 2013. This ordinance amended the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act.

What will happen to the ordinance when Parliament meets for the Monsoon session?

After the ordinance is notified it is to be laid before Parliament within 6 weeks of its first sitting. Parliament could either choose to pass the ordinance, disapprove it or it may lapse within the 6 week time frame.  In addition, the President may chose to withdraw the ordinance.

Once the ordinance is laid in Parliament, the government introduces a Bill addressing the same issue. This Bill is supposed to highlight the reasons that necessitated the issue of the Ordinance. Thereafter, the Bill follows the regular law making process.

How often does the President use this power to make ordinances?

Data over the last 60 years indicates that 1993 saw the highest number of ordinances being passed, i.e. 34. In comparison, a fewer number of ordinances are now being issued. For example, in the last 10 years the average number of ordinances issued per year is 6.

 

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