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Why the Issue Cropped Up.

Recently Supreme Court in a landmark judgement has widened the scope of judicial review of ordinance owing to its misuse wherein it was used more as an instrument to circumvent the legislative procedure. It has been observed by Supreme Court that at times the President or the Governor might get influenced by ulterior motives to promulgate the ordinance and such an act by the two constitutional authorities would amount to a ‘fraud on their powers’.

In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court widened the boundaries of judicial review to the extent that it can now examine whether the President or the Governor was spurred by an “oblique motive” to bypass the Legislature and promulgate an ordinance.

Let us see in brief the Stand of Supreme Court on the Ordinance issue.

SC on Ordinance: Krishnakumar Singh vs State of Bihar

In a landmark verdict, the Supreme Court’s Constitution Bench ruled that repromulgation of ordinances defeats the constitutional scheme and is a fraud on the Constitution

• Ordinances are legislative measures adopted by governments both at the Centre and in the States during the interregnum between two sessions of Parliament or State Assemblies and are necessitated by ‘some state of urgency’.
• Ordinances can be legally issued by the President under Article 123 of the Constitution if he is satisfied that circumstances exist for him to take immediate action.
• Such ordinances will cease to operate at the end of six weeks from the reassembly of Parliament or earlier if they are disapproved by resolutions passed by both Houses of Parliament, or if they are withdrawn before that date.
• Article 213 has a similar provision with regard to ordinances promulgated by the Governor during the interregnum between two sessions of the State legislature.
• The Supreme Court had already declared in 1987, in D.C. Wadhwa, that repeated re-promulgation of ordinances was unconstitutional.

In Krishnakumar Singh vs State of Bihar, the Supreme Court’s seven-judge Constitution Bench held on January 2 that:

1. the presidential satisfaction with regard to the circumstances rendering it necessary for him to promulgate an ordinance immediately was subject to judicial review.
2. Second, the majority of five judges held that an ordinance should be placed before the legislature.
3. Third, the bench held that acts done under a lapsed or disapproved ordinance would not survive unless they were irreversible or reversing them would be against the public interest.

Laying before Legislature

• They judges said that the requirement of laying an ordinance before the legislative body subserved the legislative control over the ordinance-making power and the constitutional purpose of ensuring that the provisions of the ordinance were debated upon and discussed in the legislature.
• The placement of an ordinance before the legislature, therefore, was a constitutional necessity
• Failure to lay the ordinance in the legislature once it reconvened was a serious infraction because it could impact the ability of the legislature to deal with it.
• Not placing the ordinance in the legislature was a colourable exercise of power and an abuse of constitutional authority, the majority judges held.

President’s satisfaction

• The majority judges held that the court should act with circumspection when the satisfaction of the President or a Governor to promulgate an ordinance was challenged
• The court will not interfere if there is some material which is relevant to his satisfaction,” the bench held.
• The majority judges, however, added that the interference of the court could arise in a case involving a fraud on power or an abuse of power.

Repromulgation

• The majority judges were clear that repromulgation of ordinances was constitutionally impermissible since it represented an effort to overreach the legislative body, which was a primary source of lawmaking authority in a parliamentary democracy.
• The danger of repromulgation lay in the threat it posed to the sovereignty of Parliament and State legislatures, which had been constituted as primary lawgivers under the Constitution, they said.

Source:

Frontline: Ruling on Ordinance – Link

PRS blog: Ordinance making powers of the Executive in India – Link