Voice from the Rooftop

Blog of Vincent Augustine D'Souza

Ordinances

On 2/1/2017 Supreme Court held that re-promulgation of ordinances is a fraud on the Constitution and the ordinances are not immune from judicial scrutiny when the power has been exercised to secure an oblique purpose. It was a 5-2 majority judgment. Justices S. A. Bobde, Adarsh K. Goel, Uday U. Lalit, D. Y. Chandrachud and L. Nageshwara Rao delivered the majority judgment. CJI Tirath Singh Thakur and Justice Madan B. Lokur differed from the majority view.
Ordinances are for emergency situation. The Constitution has no provision for re-promulgation. An ordinance has to be laid before the legislature and has to be passed within six weeks of reassembly of the legislature. Many times governments have summoned legislatures for a period of less than six weeks and after the session is over re-promulgated the ordinances. Many times ordinances are not placed before legislatures on the ground that ordinances are valid for six months. Presidents and Governors have obliged governments by re-promulgating ordinances. The Constitution does not mention validity of six months for ordinances.
For Central Government the relevant Article states:
(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six
weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation.—Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

For State Government the relevant Article states:
(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a
Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such
Ordinance if—
(a) a Bill containing the same provisions would under this Constitution have required the previous
sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the
consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance—
(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council
in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor.
Explanation.—Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.

Supreme Court was ruling on petitions challenging the validity of ordinances issued and re-promulgated in Bihar in 1989-1991. I do not know why it took 25 years for this verdict.

The fraud on the Constitution is played repeatedly. Parliament and state legislatures are rendered useless. Recently the President signed an ordinance regarding enemy property for an unprecedented fifth time. He signed the obnoxious ordinance known as Specified Bank Notes (Cessation of Liabilities) Ordinance 2016 which ended RBI’s liability on old 500 and 1,000 rupee notes and which made it a crime to hold 10 or more old notes the fine being 10,000 rupees or five times the amount of face value of old notes whichever is higher. I hope he will not sign any ordinance for re-promulgation. Modi had said people can exchange old notes with RBI till 31/3/2017. People who trusted him have been betrayed. Modi government played a fraud on the nation. On 3/1/2017 many people with old notes protested at RBI offices as RBI refused to exchange notes.

Petitions challenging Ordinance on demonization is before Supreme Court. Modi government did not place it before Parliament during winter session. Budget session is due in February. All ordinances pending should be placed before Parliament.

Updated: January 5, 2017 — 8:23 am

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