24th May 2023 (6 Topics)
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Govt’s power to promulgate, repromulgate Ordinances — why and how
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.
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Ordinance in Constitution
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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.
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