Context

Recently, an Ordinance was promulgated by the Indian President, giving the Lieutenant Governor of Delhi power over services in the National Capital Territory (NCT).

About

• The Ordinance established a "National Capital Civil Service Authority"consisting of the Chief Minister and two senior IAS officers, allowing them to decide matters through majority voting.
• Critics argue that thismove effectively creates a situation where the elected Chief Minister's views can potentially be overruled.

What are Ordinances?

• Article 123 of the Constitutionof India grants the President certain law-making powers to promulgate ordinances when either of the two Houses of Parliament is not in session, in urgent situations.
  • Hence, it is not possible for the ordinances to be issued by Parliament.
  • When an ordinance is promulgated but the legislative session is yet to commence, the ordinance remains in effect as law.It has the same force and effect as an Act of the legislature.
• But it requires subsequent ratification by Parliament within six weeks of its reassembly.
  • An ordinance promulgated by the President has a maximum validity of six months and six weeks from the date of its promulgation.
• The Governorof a state can also issue ordinances under Article 213 of the Constitution of India, when the state legislative assembly is not in session.
• If the two Houses start their sessions on different dates, the later date is considered (Articles 123 and 213).

Enactment:

• In the process of enacting an ordinance, the decision to bring forth the ordinance lies with the government,as the President acts on the advice of the Council of Ministers.
  • If the President deems it necessary, s/he may return the Cabinet's recommendation for reconsideration.
  • However, if it is sent back (with or without reconsideration), the President must promulgate it.

Withdrawal:

• The President can withdraw an Ordinance, and both Houses of Parliament can pass resolutions to disapprove it, potentially leading to its lapse. Rejection of an ordinance would, however, imply the government has lost majority.
  • However, if an Ordinance enacts a law that falls outside the purview of Parliament's competence, it is considered void.

Repromulgation of Ordinance:

• When an Ordinance lapses, the government can choose to re-promulgate it if necessary.
• In a 2017 case, the Supreme Court ruled that repeatedre-promulgations without legislative consideration would be unconstitutional and a violation of the legislature's role.
  • The court emphasised that the power to issue an Ordinance should be treated as an emergency measureand not as a means to bypass the legislature.

Note: An ordinance like any other legislation can be retrospective i.e., it may come into force from a backdate. It may also modify or repeal any act of Parliament or another ordinance.