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On Gross Abuse of Ordinance Power

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Posted by: Navhind Times January 17, 2015 in Commentary

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The Opposition has gone hammer and tong against the government for issuing ordinances immediately Rs1,198 Rs1,197
after the Parliament was adjourned sine die after the winter session. The carping critics term it as an insult
to Parliament while the government defends that it was left with no option in the face of obstructionism by
the Opposition in Rajya Sabha. The obstreperous Opposition in the House of Elders did not allow any
business to be transacted, and thus, it could not deliberate on the bills passed by Lok Sabha relating to
enhancing the foreign direct investment (FDI) in the insurance sector and coal allocation. The other one
relates to amending the land acquisition Act, which has led to maximum hullabaloo.

Unique feature of Constitution

Under Articles 123 of the Constitution, the President is empowered to promulgate ordinances during the

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09/03/2017 On Gross Abuse of Ordinance Power | The Navhind Times
recess of Parliament. Article 213 bequeaths similar power to the Governor for the state. The ordinance- Social
making power of the President of India is a unique feature of the Indian Constitution which does not find
any place in any other Constitution of the Commonwealth. It is an atavistic hand-me-down from the
Government of India Act, 1935. In fact, approximately two hundred and fifty clauses of the GI Act, 1935   
were directly incorporated into the Constitution. However, this power to promulgate ordinances is a kind
of emergency power which can be exercised when the President is satisfied that the circumstances exist
which render it necessary for him to take immediate action. Clause (4) was added to both Articles 123 and
213 that the satisfaction of the President and Governor, respectively shall be final and shall not be Find us on Facebook
questioned in any court on any ground. But it was omitted by the Constitution (Forty-Fourth Amendment)
Act, 1978, S. 16 with effect from 20 June 1979. The Navhind Times
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In A K Roy vs Union of India (1981), the Supreme Court was asked to decide on the justiciability of the
President’s satisfaction in the light of the 44th amendment act, the Court held that “it is arguable that the
44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to Like Page Share
the question relating to the President’s satisfaction,” but it declined to pronounce on the justiciability issue
as the ordinance (challenged in the case) had been substituted by an act of Parliament by then. When the
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petitioner’s counsel insisted that then there would hardly be any occasion for the Court to consider that
question because the challenged ordinance is almost invariably replaced by an act by the time the matter
comes for hearing, the Court said, “Abstract questions present interesting challenges, but it is for scholars
and text book writers to unravel their mystique. It is not for the courts to decide questions which are but
of academic importance.” It added that “the other reason we are not inclined to go into the question as
regards the justiciability of the President’s satisfaction under Article 123(1) is that on the material which is
placed before us, it is impossible for us to arrive at a conclusion one way or the other.”

Abuse of emergency power Popular Recent Comments Tags

The Founding Fathers of the Constitution vested this power in an authority which was least likely to abuse Govt push, buoyant prices push up iron ore
it. However, some members expressed apprehension even in the Constituent Assembly that the power output
might be misused. The fear has come true. Since August 15, 1947, 779 ordinances have been promulgated. March 9, 2017
200 ordinances were issued during the period when Jawaharlal Nehru was the prime minister. Since he
Exhibition of sculptures at Kerkar’s Gallery
was in the chair for 6126 days, on an average, an ordinance was promulgated every 30th day. During the
March 15, 2010
era of Indira Gandhi, who held office for 5825 days, 208 ordinances were promulgated. Thus, an
ordinance was issued every 28th day. During the government led by P V Narsimha Rao, an ordinance was When Barbara brewed Brilliance
issued every 16th day and every 39th day during the Vajpayee government. The minimum recourse to it March 15, 2010
was taken during the government headed by Lal Bahadur Shastri; only 9 ordinances were issued during
his tenure of 581 days which makes it one ordinance every 65th day.

This power was put to utter abuse by the Bihar government, which promulgated about 2000 ordinances
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between 1971 and 1981. Not only that, the state government was being run by ordinances as the same
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ordinance was re-promulgated again and again immediately after its expiry as an ordinance has a short
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09/03/2017 On Gross Abuse of Ordinance Power | The Navhind Times
life. Since it is promulgated when the legislature is not in session to meet extraordinary situations, it has to
be replaced by an act within six weeks after the commencement of the session. As the gap between two
sessions of the House cannot be more than six months, the maximum life of an ordinance can be seven
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months and twelve days. However, Prof D C Wadhwa, who worked on agrarian reforms in Bihar,
discovered that some ordinances were kept in force for as long as 14 years by a contrivance called re-
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promulgation. Wadhwa challenged it in the Supreme Court terming it as a fraud on the Constitution since
output #Goanews #NavhindTimes #Goa...
the law-making power of the state legislature had been usurped by the executive through ordinances. The
https://t.co/Q4vV1W028c 10 hours ago
Court accepted the contention of the petitioner.

 Online fraudsters cheat two gullible men of

Respecting national interest Rs 26 lakh #Goanews #NavhindTimes #Goa...
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It is curious that every government takes recourse to ordinance-making power and every opposition party
cries foul. The Congress’ animadversion is not convincing as it used this power frequently while being in  State rolls up its sleeves for D-Day #Goanews
#NavhindTimes #Goa...
power. Similarly, it condemned disruption of Parliament as undemocratic when it was in government but
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now it is using the same trick to corner the government. Political parties take a somersault with change of
benches. Disruption of parliament is a legitimate weapon for the Opposition but there is a volte face in its
thinking when it comes to the treasury bench. Similarly, ordinance-making is a legitimate weapon in the
hands of government if the Opposition is unruly, but changes tack when eased out of the treasury bench.
Political parties must learn to respect the national interest instead of scoring brownie points for which
there are umpteen opportunities. The Opposition can put the government on mat in Parliament if it
functions properly, but disruption makes news, and so that is the best way to make its presence felt. The
media should also learn to give space to serious debates that will encourage our parliamentarians to
desist from disruption and participate in meaningful debate.

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