Re-promulgation of Ordinances
RE-PROMULGATION OF ORDINANCE RIGHT OR WRONG?
The Union Government has re-promulgated the ordinance establishing a commission for air quality management in the National Capital Region, or the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020.
The practice of re-promulgation of ordinance without getting them ratified by the Parliament has raised questions on the legality of the practice.
What does the Constitution say?
It is a special power, granted for unavoidable situations, by the constitution to the central and State governments to make laws when Parliament (or the State Legislature) is not in session.
Thus the power of law making which is by default a legislative power is given in the hands of the executive to deal with urgent matters.
In order to avoid its misuse and doing justice to the legislative, The Constitution said that the ordinance will lapse at the end of six weeks after Parliament (or the State Legislature) will meet next.
Practice of ordinance promulgation:
Though the provision of ordinance is an extraordinary provision, it is being used by the government more regularly.
In the decade of the 1950s union ordinances were issued at an average of 7.1 per year.
In the 1990s they were issued at a rate of 19.6 per year and then decreased to 7.9 per year in the 2010s.
The recent year have again witnessed the spike in the number of ordinance with 16 in 2019, 15 in 2020.
Can the ordinance be re-promulgated:
Constitution: it is silent on the question of Re-promulgation
Constitutional assembly debate: Interestingly, in the constituent assembly debate the question of repromulgation never arises.
In 1986, in D.C. Wadhwa case against the Bihar government which had issued 256 ordinances between 1967 and 1981, out of which 11 which were existing for more than 10 years.
The constitutional bench ruled that re promulgation of ordinances was unconstitutional.
It said, “it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to promulgate the Ordinance”. “Such a stratagem would be repugnant to the constitutional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislature ”
Impact of the judgement of 1986:
The judgement failed to stop the practice of the ordinance repromulgation.
On the contrary, the centre followed the same step as, in 2013 and 2014, the Securities Laws (Amendment) ordinance was promulgated three times.
An unconstitutional practice
The Supreme Court again in January 2017 with a seven-judge Constitution Bench declared the practice to be unconstitutional and found it to be subversive of the legislative process. Even this judgment went ignored.
The Indian Medical Council Amendment Ordinance was first issued in September 2018, and reissued in January 2019. Despite the fact that it was passed by only one House of Parliament in the intervening session.
The present case of the Commission for Air Quality Management is even more egregious, as a Bill to replace the ordinance was not even introduced in the parliament. However, the ordinance has been repromulgated now.
The use of ordinance route is nothing less in states as well:
For example, in 2020, Kerala issued 81 ordinances, Karnataka issued 24 and Maharashtra 21.
How to restore the democratic order?
The legislatures and the courts need to check the practice. That is why the Constitution has provided for the separation of powers and the concept of checks and balances by the different organs of the constitution. By checking this practice of ordinance re promulgation the other two organs must fulfill theory responsibility resorted to them by the Constitution and the Constitution makers.