Coming straight to the crux of the matter, let me begin by first and foremost expressing my uttermost anguish and total disenchantment over the callous manner in which ordinance is repeatedly promulgated making an entire mockery of our democratic system. It is most distressing to see that ordinance power as conferred upon the President under Article 123 and the Governor under Article 213 is seen frequently being used again and again in an unwarranted manner. This must stop forthwith.
Truth be told, this is exactly what the Supreme Court examined the ordinance making power as conferred on the President and/or Governor under the Constitution in Krishna Kumar Singh & Another v. State of Bihar & Others [(AIR 2017 (1) SCALE 178)]. The Seven-Judge Bench of the Supreme Court again gave a split judgment with the majority leading overwhelmingly 6:1. The Court in the present case was dealing with the successive promulgation of ordinances by the Bihar Government led by Nitish Kumar without the ordinances being laid before the State Legislature.
To put things in perspective, the majority judgment very explicitly laid down the broad guidelines of the nature and manner of exercising the ordinance making power. These guidelines must always be kept in mind by all the Chief Ministers, Prime Minister, Governors and President before exercising the ordinance making power. They run as follows : –
1. The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative in character. The power is conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action.
2. An Ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn.
3. The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.
4. Consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control. The requirement of laying an Ordinance before Parliament or the State legislature is a mandatory constitutional obligation cast upon the government.
5. The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process.
6. Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, as laid down in the judgment of the Constitution Bench in DC Wadhwa.
7. The decisions of the Constitution Bench which have accepted the notion of enduring rights which will survive an ordinance which has ceased to operate do not lay down the correct position. The judgments are also no longer good law in view of the decision in SR Bommai.
8. The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction.
9. The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review.
Going forward, the Supreme Court has rightly held that repeated re-promulgation of ordinance is a fraud on Constitution which can never be justified under any circumstances. This must always be borne in mind by all the governments in power. They can afford to ignore it only at the cost of their own peril!
All said and done, these landmark guidelines laid down by the top court of India must be followed in letter and spirit by all the governments whether in the Centre or in the States. There can be no two opinions on it. Let us hope that wise counsel will finally prevail on all the governments and they will not disregard what the highest court of India – the Supreme Court has laid down so categorically! Let us earnestly hope so!