What is Ordinance?

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What is Ordinance?
Ordinance is a law issued by governor or president when the parliament is not in session.
Ordinance can be promulgated by President under Article 123 of the Constitution when the Parliament is not in session.  (Note: President can withdraw any ordinance at any time)

Conditions related to this ordinance route:

  • President should be satisfied that such situation should exist that there is need to formulate.
  • Such ordinance should be approved by both the houses of Parliament within the period of 6 weeks from the reassembly of the Parliament.
  • Ordinance can’t be promulgated by President only on those provisions on which Parliament is entitled to make laws.

(Note: For Governor it is under Article 213. But Governor can’t make ordinances if: i) a bill containing such provisions would have to take permission of the President before its introduction ii) if that was to be reserved for President’s consideration.) (Note: For Administrator of UT: Article 239B)

Why is it in News?
Many bills were not passed by the current government & that is why ordinance route is being used by the current government for making laws.

Basics of Ordinance

  • It is never a preferred route to make law under democracy. Least preferred route. (Only in Emergency)
  • It is done in the situation which requires urgent attention.
  • If used even when such a law could have been made in parliament, it shows that government do not enjoy majority in the house.

Judicial review 
Courts have uniformly held, in varying formulations, that the power of the President and the Governors to issue ordinances is in the nature of an emergency power. In A.K. Roy vs Union of India and R.C. Cooper vs Union of India (bank nationalisation case), the Supreme Court said that ordinance-making power was a legislative power given to the President and was not similar to the exercise of his executive powers. As such, ordinances are also “law” under Article 13.
Though the sheer profligacy in ordinance-making compelled the Supreme Court to start performing some sort of judicial review, there is as of now no clarity on the nature and extent of judicial review over ordinance-making.

In Favour

  • Parliament has been least productive in these years.  (Many bills have not been passed).
  • So why not use ordinance route to make laws on urgent & pressing issues.
  • Political games are being played instead of the will to pass the bill.
  • It is increasing the pain & sufferings of the common citizen because of the very important bills like Public Grievance bill, Whistle Blower Bill are still yet to be passed.
  • It is the worst scenario in the parliamentary democracy.
  • There is urgent need & why not make ordnance. Next Lok Sabha will see what to do of this ordinance.
  • Once a bill lapse in any house it takes much time to re-introduce that bill in the house.

Criticism

  • House was not able to function for lot of time. ( 3 sessions spoilt)
  • Why the need of Ordinance now? It should have been done already if they (the ruling government) wanted it be.
  • Not an ethical way in current situations.
  • All these important & crucial bills are imperfect as sufficient deliberations has not taken place in the Parliament.
  • Increasing Bill Legitimacy: Bills should not have been introduced in the Lok Sabha. It should have been introduced in the Rajya Sabha as it would not lapse & can be deliberated easily in the Lok Sabha.
  • No one will question the ordinance but what about legitimacy.
  • Corporate bills (Banking privatization, pension regulatory authority bill) are getting passed easily then why not other bills. (Note: But on the contrary Food security bill & Land reforms Act was also passed which antagonized Corporate world)

Solution

  • Informally consult President first to get his view on this.
  • Take opposition party into confidence because there is question on the matter that which government will come to ruling. So that the bill do not lapse.
  • Leader of opposition & leader of current government should go to President & have a meeting to decide over the matter.

(Note: Many bills have been passed in 2011 & 2012. So can’t actually be said that governments for this period didn’t want any bill to pass)

Conclusion
Our Constitution gives vast powers to the executive to act independently of Parliament. It can, for example, declare a state of emergency, set up important administrative authorities such as the Pension Fund Regulatory and Development Authority (PFRDA) and the Unique Identification Authority of India (UIDAI), and indeed the Planning Commission without having to seek parliamentary approval first. It then becomes imperative that the ordinance-making power be suitably restrained to create a balance of power between the executive and the legislature. Creating strong judicial review over ordinance-making may be one such mechanism.

Practice Questions
Q1
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