Govt’s power to promulgate, repromulgate Ordinances

Published: 25th 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 the exception of public order, law enforcement, 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, which is titled "Power of the President to promulgate Ordinances during recess of Parliament," the President is authorized to promulgate any ordinance that he deems necessary, provided that he is satisfied that certain circumstances exist that necessitate his immediate action, "at any time, with the exception when both Houses of Parliament are in session."
Ordinance: "Shall have the same force and effect as an Act of Parliament," according to the ordinance. However, for the Ordinance to become operative, the administration must present it to Parliament for confirmation; otherwise, it will expire "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: It would be implied that the government has lost the majority if an Ordinance were to be rejected.
  - Additionally, an Ordinance is null and void if it creates a law that the Constitution does not authorize Parliament to enact.
Power of President: The administration effectively determines whether to propose the Ordinance since the President does so based on the Council of Ministers' advice.
- If the President determines that the suggestion from the Cabinet needs to be reconsidered, she has one chance to send it back; if not, she must issue a proclamation.
Powers of the Governor: When the state legislature is not in session, the Governor may promulgate or revoke an Ordinance under generally similar circumstances, as stated in Article 213.
Validity: An Ordinance is in effect for forty-two days, or six weeks, starting on the day of the following session.
- According to the explanations in Articles 123 and 213, the later date shall be taken into consideration if the two Houses convene on separate days.

Supreme Court: Re-promulgation of Ordinance

Krishna Kumar Singh and Another v. State of Bihar: The government's only recourse in the event that an Ordinance expires is to reprint or repromulgate it for any cause.
- A case involving the state of Bihar repeatedly promulgating an ordinance without presenting it to the legislature was reviewed by the Supreme Court in 2017.
The Supreme Court ruled that the Governor's authority to promulgate an ordinance is an emergency power and that it would be unlawful to repeatedly promulgate the ordinance without first putting it before the legislature.
This went against the ruling in Dr. D C. Wadhwa and Ors v. State of Bihar and Ors (1986) by the Supreme Court.
Six weeks after the Legislature reassembly, an Ordinance issued by the Governor to address an emergency situation would no longer be in effect, according to a ruling by a Constitution Bench of the Supreme Court led by then Chief Justice P N Bhagwati.
The government "has to go before the Legislature," the constitutional body tasked with enacting laws, if it wants the Ordinance to be in effect after the six-week term.

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Govt’s power to promulgate, repromulgate Ordinances

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