[Document title]

REPROMULGATION OF ORDINANCE AND THE USURPATION

OF LEGISLATIVE POWER
INTRODUCTION

India follows a parliamentary democracy which ensures separation of powers to prevent one
branch of the government from abusing or controlling the other branch although we don’t
follow separation of power in a strict sense as held by the supreme court in “Ram Jawayya
Kapur VS State of Punjab”1 and other cases it’s still crucial to avoid concentration of power
in the hands of one organ and for their efficient working. Organs within their sphere are
independent and can’t be interfered with and in some way or the other each organ checks the
other which also clearly means that the executive cannot pass legislation on the task which
falls within the ambit of legislatures. However, Article 123(1) 2of The Indian Constitution
states grants power to the president to promulgate ordinances however there is a condition
that needs to be taken care of that is least one house of the parliament is not in session and the
president feels that there is an emergency that needs immediate action similar provisions exist
for governors under Article 2133 these ordinances are treated the same way as a law passed
by the legislature what makes it different from an act or a bill is that these ordinances are
temporary laws which stands invalid at the end of six weeks from the time parliament meets
if in the case before that period of dissolution the legislature does not disapprove the
ordinance or it gets converted into a law, again several ordinances have been issued from
time to time the recent being Banking Regulation (Amendment ) regulation ordinance and the
three contentious farm ordinances4

Clearly, the law doesn’t specifically define the maximum number of times an ordinance can
be issued which gives away arbitrary power to the executive to use it as their upper hand5

1
Ram Jawayya Kapur vs State of Bihar 1955 AIR 1955 SC 549, [12].
2
The Constitution of India 1950, art 123(1).
3
The Constitution of India 1950, art 213.
4
<https://thewire.in/government/modi-govt-with-76-ordinances-in-7-years-surpasses-upas-10-year-record-of-
61>accessed on 6th August
5
Gobinda Mukhoty, “‘Review of Re-Promulgation of Ordinances: A Fraud on the Constitution of India by D.C.
WADHWA’’(1983) 39(4) India Quarterly 2.

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Article 123 mentions that the life of an ordinance is just six months and six weeks unless
otherwise as mentioned, therefore we predominantly need to remember that constitution does
not provide for an extension to the life of the ordinance, however, there have been instances
of Government re promulgating ordinances which extend its validity and confiscate
legislative powers.

One such instance is when President promulgated the “Securities Laws (Amendment)
Ordinance, 2014”, which gives powers to SEBI to search and seizure and permits SEBI to
enter into consent settlements6, during the 15th Lok Sabha session it was re-promulgated for
the Third time Mr. Mukherjee had previously promulgated the Ordinance modifying the
Securities Laws on July 18, 2013, after the Cabinet approved altering the Securities and
exchange board Act, 1992 to give the stock markets watchdog greater powers. On September
16, 2013, it was re-promulgated again. The finance minister took the approval of EC and
cabinet ministers7

Another instance could be “The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014” (LARR
Ordinance 2014) introduced by the present government in 2014 which amended the “Right to
Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement
Act 2013” it was passed under the circumstances that the parliament was not under a session
and the president deemed it fit to pass it as an immediate action the new ordinance bought
some other revisions to the preceding 2013 legislation In 2015, the ordinance was put up in
the Lok Sabha to be passed as an act however the government was unable to convert the Bill
into an Act during the first half of the budget session in Parliament due to a split, united
opposition in the Rajya Sabha. When the budget session was reconvened, the BJP
government re-promulgated the ordinance to break the impasse and guarantee that the LARR
Bill 2015 becomes a law8.

When we consider the constitutionality of such ordinances we have to look into some judicial
pronouncements passed in relation to this by the Supreme court one such case is “Krishna
Kumar Singh vs State of Bihar” 9the Facts of the case commence, After passing of the “Bihar
Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance in
6
<https://economictimes.indiatimes.com/news/economy/policy/the-securities-laws-bill-amendments-their-
legal-implications/articleshow> accessed on 6th August
7
<https://www.thehindu.com/business/Industry//> accessed on 8th August
8
< https://economictimes.indiatimes.com/news/politics-and-nation/land-acquisition-ordinance-re-
promulgatedaccessed >on 8th August
9
Krishna kumar Singh vs State of Bihar 2017 SCC OnLine SC 10

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1989” what followed was a succession of ordinances passed one after another without
presenting it before the state legislature or making a law out of it as result the employees and
teachers resort to filling a petition dismissal of which by the High court was forwarded as an
appeal to the Supreme court by the employees for salary and other emoluments

In this case, the principle is whether Article 213 of the Constitution confers a mandatory
obligation to the executive to present an ordinance before the Legislature and Whether re-
promulgating an Ordinance is permissible as per the Constitution. In the 2017 judgment
judges believed that the validity of the first three Ordinances passed by the Governor of the
State of Bihar should be presumed. As a consequence, even if these three Ordinances were
repealed, employees would be entitled to the benefits. It was also stated that "Repromulgation
of ordinances is a fraud on the Constitution and a subversion of democratic legislative
procedures," and that "putting an Ordinance before Parliament or the state legislature is a
mandatory constitutional responsibility placed upon the executive." it was further held in the
case that "The satisfaction of the President under Article 123 and the Governor under Article
213 is not immune from judicial review,"

CONCLUSION

Above instances support the argument that often these ordinance-making power given to the
executive violates the spirit of democracy and the fundamental structure of the constitution
the power that should have been used during emergency cases is used as a prerogative, it
abuses the constitutional provisions re promulgating the ordinance cannot hide the intent and
real objective of the leaders to pass them by repealing the earlier ordinances and passing such
ordinances which are exactly of the same nature and with same legislative entries the
government breaches the basic structure of the constitution of which Separation of power is
an ordeal as held by the Supreme court in the “Kesavananda Bharati VS UOI”10 .

10
Kesavananda Bharati vs UOI 1973 AIR 1973 SC 1461, [482].

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