Ordinance Making Power

Have you ever wondered how the government can make laws quickly when the Parliament is not in session? The ordinance making power is a crucial aspect of the Indian Constitution that allows the President and Governors to enact temporary laws in urgent situations, and understanding this concept is essential for anyone interested in how India is governed.

What is the Ordinance Making Power?

The **Ordinance Making Power** is one of the most unique and powerful tools given to the President of India under our Constitution. But why does such a power exist at all? Imagine a situation where Parliament is not in session—perhaps during a sudden crisis like a pandemic, a natural disaster, or a security threat—and urgent laws are needed to protect citizens or maintain order. Waiting for Parliament to convene could take months, leaving people vulnerable. That’s where the President’s ordinance-making power steps in. It allows the government to enact laws immediately, ensuring that governance doesn’t come to a halt during emergencies.

This power is not unlimited or arbitrary. It is a temporary legislative measure—a legal shortcut to address urgent issues when Parliament is not available. Once an ordinance is passed, it must be presented before Parliament for approval when it reconvenes. If Parliament does not approve it within six weeks of reassembly, the ordinance automatically lapses. This ensures accountability and prevents misuse of power.

A real-world example is the Ordinance on Insolvency and Bankruptcy Code (IBC) amendments in 2021. During the COVID-19 pandemic, businesses faced severe financial stress, and the government needed to protect them from immediate collapse. Using the ordinance-making power, the President promulgated an ordinance to temporarily suspend certain provisions of the IBC. This gave struggling companies breathing space to recover without the threat of immediate insolvency proceedings. Later, Parliament ratified these changes, turning them into permanent law. This example shows how the ordinance-making power acts as a rapid-response tool, bridging gaps in governance during critical times.

Where does the Ordinance Making Power come from?

The Ordinance Making Power is a crucial aspect of the Indian constitutional framework, enabling the President and Governors to enact laws when the Parliament or State Legislatures are not in session. But where does this power originate from? To understand this, we need to delve into the historical background and constitutional provisions that grant this power. The concept of ordinance making is rooted in the British colonial era, where the Governor-General of India was empowered to make ordinances in cases of emergency. After independence, this power was incorporated into the Indian Constitution, with Article 123 granting the President the power to promulgate ordinances when the Parliament is not in session. Similarly, Article 213 empowers the Governors of states to make ordinances when the State Legislatures are not in session.

A notable example of the ordinance making power in action is the Insolvency and Bankruptcy Code (IBC), which was first introduced as an ordinance in 2016. The President promulgated the Insolvency and Bankruptcy Code Ordinance, which was later replaced by an Act of Parliament. This ordinance aimed to address the issue of non-performing assets (NPAs) in the Indian banking sector, which had become a major concern for the economy. The IBC has since been instrumental in resolving several high-profile insolvency cases, including that of Essar Steel, which was successfully resolved through the IBC process. This example illustrates the significance of the ordinance making power in addressing urgent economic issues and promoting economic stability.

When can an Ordinance be issued?

The Ordinance Making Power is a constitutional provision that allows the President or Governor to issue an ordinance when the legislature is not in session. This power is exercised under Article 123 of the Indian Constitution for the President and Article 213 for the Governor. The circumstances under which an ordinance can be issued are crucial, as it provides a mechanism for the executive to respond to urgent situations that require immediate legislative attention. For instance, if there is a national emergency or a situation that requires swift action, and the Parliament or State Legislature is not in session, the President or Governor can issue an ordinance to address the issue. A real-world example can be seen in the context of the COVID-19 pandemic, where the government had to take swift and decisive action to mitigate its impact. In such scenarios, the ordinance making power can be a vital tool, allowing the executive to enact laws quickly without having to wait for the legislature to convene.

What are the limitations of the Ordinance Making Power?

The President (or Governor) can issue an ordinance only when Parliament (or State Legislature) is not in session. This restriction exists so that law-making remains a collective, deliberative process rather than a one-person decision. Imagine Parliament is adjourned for the winter break and a sudden crisis—like a severe flood in Assam—requires immediate relief measures. The President can then promulgate an ordinance to release funds or waive taxes, ensuring that urgent needs are met without waiting for the next session. However, this power is not unlimited; the ordinance must be presented before Parliament when it reassembles, and it automatically lapses after six weeks unless approved. This safeguard prevents the executive from bypassing the legislature indefinitely, maintaining a healthy balance of power.

Another key limitation is that the ordinance-making power cannot be used to amend fundamental rights or the basic structure of the Constitution. For example, in 2019, the government promulgated an ordinance to amend the Insolvency and Bankruptcy Code, but it carefully avoided touching constitutional provisions like equality or freedom of speech. This restriction ensures that even in urgent situations, the core values of the Constitution remain protected. Additionally, the Supreme Court can strike down an ordinance if it finds it arbitrary, unconstitutional, or passed in bad faith—just as it did in D.C. Wadhwa v. State of Bihar (1987), where repeated re-promulgation of ordinances was deemed unconstitutional. These checks ensure that ordinances are used as a last resort, not as a shortcut to bypass democratic debate.

How does the Ordinance Making Power relate to the Legislature?

The Ordinance Making Power is a constitutional provision that enables the President of India to promulgate ordinances when the Parliament is not in session. This power is often seen as an exception to the normal legislative process, where bills are introduced, debated, and passed by the Parliament. So, how does the Ordinance Making Power relate to the Legislature? In essence, the ordinance making power allows the Executive to temporarily bypass the Legislative branch and enact laws that are necessary and urgent. For instance, in 2020, the Indian government promulgated the Ordinance to amend the Insolvency and Bankruptcy Code (IBC) to provide relief to companies facing financial distress due to the COVID-19 pandemic. This ordinance was later replaced by an Act of Parliament, which validated the amendments made by the ordinance. This example illustrates how the Ordinance Making Power can be used to address urgent economic issues, while also ensuring that the Legislative branch has the opportunity to review and validate such measures. The relationship between the ordinance making power and the legislative process is one of complementarity, where the Executive can take temporary measures to address pressing issues, while the Legislature retains its role as the primary law-making body.

What are the implications of the Ordinance Making Power?

The Ordinance Making Power has significant implications for the governance of India. This power allows the President to promulgate ordinances when the Parliament is not in session, enabling the government to respond quickly to emerging issues. However, this power can also be misused, leading to concerns about the erosion of parliamentary democracy and the concentration of power in the executive. For instance, in 2019, the Indian government used the ordinance making power to amend the Insolvency and Bankruptcy Code, allowing the government to take control of stressed assets and facilitate their sale. While this move was intended to boost economic growth, it also raised concerns about the potential for arbitrary decision-making and the undermining of judicial oversight.

A key implication of the ordinance making power is that it can be used to bypass the legislative process, potentially undermining the role of Parliament in shaping the country's laws. This can lead to a lack of transparency and accountability, as ordinances are not subject to the same level of scrutiny and debate as bills passed by Parliament. Furthermore, the ordinance making power can also be used to push through controversial or politically sensitive legislation, which can have far-reaching consequences for the country's governance and stability. For example, the Enemy Property Ordinance, promulgated in 2017, allowed the government to seize properties belonging to individuals who had migrated to Pakistan, sparking concerns about the impact on minority rights and communal relations.

To illustrate the potential consequences of the ordinance making power, consider the case of the Food Safety and Standards Ordinance, which was promulgated in 2006 to establish a regulatory framework for food safety in India. While the ordinance was intended to improve public health and safety, it also had significant implications for the food industry, particularly small-scale producers and street vendors. The ordinance led to a surge in inspections and enforcement actions, resulting in the closure of many small-scale food businesses and the loss of livelihoods for thousands of people. This example highlights the need for careful consideration and consultation when exercising the ordinance making power, to ensure that the consequences of such actions are fully understood and mitigated.

Can an Ordinance be challenged in Court?

Imagine you are running a small factory in Delhi and a new state ordinance suddenly bans overnight factory operations without any prior public notice or debate. Your entire production schedule collapses overnight, workers are sent home, and your bank loans keep piling up. Can you challenge this ordinance in court? The short answer is yes, and here is why.

Ordinances are temporary laws made by the executive (President or Governor) when the legislature is not in session. While they fill urgent legislative gaps, they must still respect the Constitution. If an ordinance violates fundamental rights, exceeds executive power, or is malafide (motivated by bad faith), the Supreme Court or High Courts can strike it down through judicial review. This power comes from Articles 13 and 226 of the Constitution, which allow courts to examine whether any law—including an ordinance—is constitutional.

For example, in D.C. Wadhwa vs. State of Bihar (1987), the Supreme Court struck down a series of re-promulgated ordinances by the Bihar Governor. The state kept issuing the same ordinance repeatedly without placing it before the legislature, effectively bypassing democratic debate. The Court held that this amounted to an unconstitutional exercise of power, reinforcing that ordinances cannot be used as a substitute for legislation.

In practice, courts examine ordinances on three main grounds:

• Violation of Fundamental Rights: If an ordinance restricts freedom of speech or equality before law without a valid justification, it can be struck down.
• Lack of Legislative Competence: If the executive issues an ordinance on a matter that only the legislature can decide (e.g., a financial bill), it exceeds power.
• Malafide or Colourable Exercise of Power: If the ordinance is issued to bypass legislative scrutiny for political reasons, courts can intervene.

So, if an ordinance harms your rights or is used to avoid democratic process, the courts provide a vital check—ensuring that even urgent laws must pass constitutional muster.

What is the difference between an Ordinance and an Act of Parliament?

The Ordinance Making Power is a crucial aspect of the Indian constitutional framework, allowing the President to promulgate ordinances when the Parliament is not in session. But what sets an ordinance apart from an Act of Parliament? To understand this distinction, let's delve into the characteristics of both. An ordinance is a temporary law made by the President, whereas an Act of Parliament is a permanent law enacted by the legislative body. One key difference lies in their duration; an ordinance is valid for six months and six weeks, unless it is approved by the Parliament, whereas an Act of Parliament remains in force until it is repealed or amended.

A notable example illustrating this difference is the Ordinance Making Power exercised by the President in 2019, regarding the issue of triple talaq. The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, was promulgated to criminalize instant triple talaq, given the urgency of the matter and the fact that the Parliament was not in session. Later, the ordinance was replaced by the Muslim Women (Protection of Rights on Marriage) Act, 2019, which was passed by the Parliament. This example highlights how an ordinance can be used to address pressing issues, which can then be consolidated into an Act of Parliament.

The following characteristics further differentiate an ordinance from an Act of Parliament:

• An ordinance is made by the President, while an Act of Parliament is enacted by the legislative body.
• An ordinance has a limited duration, whereas an Act of Parliament is permanent unless repealed or amended.
• An ordinance can be promulgated when the Parliament is not in session, whereas an Act of Parliament requires the Parliament to be in session.

In conclusion, understanding the distinction between an ordinance and an Act of Parliament is essential for grasping the Ordinance Making Power and its implications in the Indian constitutional framework. By recognizing the differences in their characteristics, duration, and enactment, one can better appreciate the role of ordinances in addressing urgent matters and the significance of Acts of Parliament in establishing permanent laws.

Key takeaways

• The Ordinance Making Power allows the President (or Governors) to enact temporary laws when Parliament (or State Legislatures) is not in session, ensuring urgent governance during crises.
• Ordinances are temporary legislative measures and must be presented before Parliament (or State Legislature) for approval within six weeks of reassembly to prevent lapsing.
• If Parliament does not approve an ordinance within six weeks of reassembly, the ordinance automatically lapses, ensuring accountability and preventing misuse.
• The Ordinance Making Power originates from the Indian Constitution, specifically Article 123 for the President and Article 213 for Governors.
• Historically, this power traces back to the British colonial era, where the Governor-General could issue ordinances in emergencies.
• A real-world example is the 2021 Insolvency and Bankruptcy Code (IBC) amendments, where an ordinance provided temporary relief to businesses during the COVID-19 pandemic.

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