Govt’s power to promulgate, repromulgate Ordinances

Published
26th May, 2023

Context

Recently, the central government promulgated an Ordinance that Aam Aadmi Party government of Delhi has control over the transfer and posting of officials in the National Capital Territory (NCT), except with regard to public order, police, and land.

Key highlights:

The Ordinance promulgated by the President of India gave the Lieutenant Governor of Delhi power over services and established a "National Capital Civil Service Authority" consisting of the Chief Minister and two senior IAS officials.

Ordinance in Constitution

Article 123: Under Article 123 of the Constitution (“Power of President to promulgate Ordinances during recess of Parliament”), “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.”
Ordinance: An Ordinance “shall have the same force and effect as an Act of Parliament”. But the government is required to bring an Ordinance before Parliament for ratification - and failure to do so will lead to its lapsing “at the expiration of six weeks from the reassembly of Parliament”.
- The Ordinance may lapse earlier if the President withdraws it - or if both Houses pass resolutions disapproving it.
  - § Lost majority: Rejection of an Ordinance would, however, imply the government has lost majority.
  - § Also, if an Ordinance makes a law that Parliament is not competent to enact under the Constitution, it shall be considered void.
Power of President: Since the President acts on the advice of the Council of Ministers, it is in effect the government that decides to bring the Ordinance.
- The President may return the recommendation of the Cabinet once if she feels it warrants reconsideration; if it is sent back (with or without reconsideration), she has to promulgate it.
Powers of the Governor: Article 213 deals with the broadly analogous powers of the Governor to promulgate/ withdraw an Ordinance when the state legislature is not in session.
Validity: An Ordinance is valid for six weeks, or 42 days, from the date on which the next session starts.
- If the two Houses start their sessions on different dates, the later date will be considered, say the explanations in Articles 123 and 213.

Supreme Court: Re-promulgation of Ordinance

Krishna Kumar Singh and Another v. State of Bihar: If, for whatever reason, an Ordinance lapses, the only option for the government is to reissue or repromulgate it.
- In 2017, the Supreme Court examined a case where the state of Bihar re-promulgated an Ordinance several times without placing it before the legislature.
The Supreme Court held that the Governor's power to issue an Ordinance is an emergency power, and that repeated re-promulgations without bringing the Ordinance to the legislature would usurp the legislatures function and be unconstitutional.
This was in violation of the SC judgment in Dr D C Wadhwa and Ors v. State of Bihar and Ors (1986).
A Constitution Bench of the Supreme Court headed by then CJI P N Bhagwati held that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature.
If the government wishes for the Ordinance to continue in force beyond the six-week period, it “has to go before the Legislature”, which is the constitutional authority entrusted with law-making functions.