The Union Government has decided to re-promulgate the contentious Land Acquisition Ordinance before it lapses on April 5, even though it will mean taking on a virtually united opposition.
What are they?
Ordinances are temporary laws which can be issued by the President when Parliament is not in session.
- Ordinances are issued by the President based on the advice of the Union Cabinet.
- The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution.
- This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.
- Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’.
Approval by the Parliament:
- Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.
- They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses.
Why are they issued?
- The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session.
- Often, ordinances are used by governments to pass legislation which is currently pending in Parliament.
- Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident.
Re-promulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body.
Supreme Court’s observations on Re-promulgation:
In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, the SC observed:
“The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends”. It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.”
History of Ordinances:
- Ordinances were incorporated into the Constitution from Section 42 and 43 of the Government of India Act, 1935, which authorised the then Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’.
- Most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long.
- Some Members of the Constituent Assembly emphasised that the Ordinance making power of the President was extraordinary and issuing of Ordinances could be interpreted as against constitutional morality.
Sources: The Hindu, prsindia.org, PIB.