What is Ordinance?
Definition of Ordinance: An official order issued or issued by the head of state to deal with a particular situation is called an Ordinance. In clear words, when the government wants to pass a law in case of emergency, but it is not getting the support of other parties in the upper house, then the government can pass it through an ordinance.
History of Ordinance:
Ordinances have been issued many times in Indian history till now. It is noteworthy that between 1952 and 2014, ordinances have been issued 668 times. A total of 256 ordinances were issued in the state of Bihar between 1967 and 1981 and they were kept alive for 14 years by repeatedly issuing them without being approved by the Legislature, while the Legislature enacted only 189 laws.
On the other hand, the most surprising thing is that the then Governor of Bihar Jagannath Kaushal issued 58 ordinances in just one day on 18 January 1986.
President who issued the most Ordinances:
Fakhruddin Ali Ahmed, the fifth President of India, was the President who issued the maximum number of ordinances. Emergency was declared in 1975 by Fakhruddin Ali Ahmed under Article 352 of the Constitution.
Who issues Ordinance?
Ordinance can be issued by the President under Article 123 of the Constitution of India at the behest of the Government, when neither of the two Houses is in session. The power to issue ordinance is the legislative power of the President.
Ordinance is a temporary way of passing any bill. Any ordinance remains in force for 6 weeks after the end of the next session of the House. Any bill on which an ordinance has been brought has to be passed through voting in the next session of the Parliament. If this does not happen then the President can issue it again.
The framers of the Constitution made the ordinance route thinking that in case of an emergency, necessary bills could be passed. Examples of these situations are the Emergency imposed by the Indira Gandhi government and the time when the government was in a state of disarray from 1996 to 1998. The framers of the Constitution made the Ordinance way thinking that in an emergency, necessary bills should be passed. Can go Examples of these situations are the Emergency imposed by the Indira Gandhi government and the period when the government was in and out of power from 1996 to 1998.
Conditions (Limitations) for Issuance of Ordinance:
- The President can issue ordinances only on those subjects on which the Parliament has the power to make laws.
- An ordinance can be issued even when only one house of Parliament is in session as the bill has to be passed by both the houses. However, when both the Houses of the Parliament are in session, the ordinance issued at that time will be considered invalid.
- The fundamental rights of the citizens cannot be encroached upon by an Ordinance as the word law under Article 13(a) includes 'Ordinance'.
- An ordinance issued by the President must be approved by both the Houses of the Parliament within 6 weeks of the re-session of the Parliament, otherwise the Ordinance will become ineffective after the lapse of 6 weeks.
- In the Cooper case (1970), the Supreme Court held that the Ordinance was open to judicial review. However, the 38th Constitutional Amendment Act 1975 stated that the satisfaction of the President would be final and valid and would be beyond judicial review. But this provision was abolished by the 44th Constitutional Amendment and now the satisfaction of the President can be challenged judicially on the ground of mala fide.
- An ordinance issued by the President can be challenged on the grounds of vagueness, arbitrary application, reasonableness and public interest.
- An ordinance issued by the President can be withdrawn by him at any time.
- Ordinance can also be issued by the President when a law has been declared invalid by the Supreme Court and it is necessary to make a law on that subject.
- An ordinance promulgated during the prorogation of Parliament must be laid before both the Houses when the Parliament meets next. If the Parliament does not take any action on this, then the Ordinance expires after 6 weeks of the re-assembly of the Parliament. If both the Houses of the Parliament approve it, then it can end even before 6 weeks. If both the Houses of Parliament are called to meet on different dates, then these 6 weeks will be counted from the later date.
- The maximum duration of an ordinance is 6 months, 6 weeks if not approved by Parliament.
- An Ordinance can be retrospective like a Bill i.e. it can be made effective from a retrospective date. It can amend or repeal any act or other ordinance of the Parliament. It can also change any tax law. However, an ordinance cannot be issued to amend the constitution. The power of the President to issue ordinaance has no relation to the emergency mentioned in Article 352. The President can also issue ordinances in case of war, external aggression and armed rebellion.
Ordinance to be brought by the Governor:
Article 213 provides that when the Legislature of the State is not in session and the Governor is satisfied that circumstances exist requiring immediate action, he may issue Ordinances. In states where there are two houses, it is not necessary for both the houses to be in session.
The Governor can issue ordinances related to only those subjects up to which the State Legislature can make laws. Ordinance issued by the Governor is also necessary to get the approval of the Legislature within 6 weeks of the State Legislature coming into session, otherwise it will become ineffective. Although the Governor has the power to issue ordinances like the President, but in this regard, some limitations have been imposed on this power of the Governor, which are not on the power of the President.
It is noteworthy that the ordinance issued by the Governor can override any decision given by the High Court under Article-226.
Period of Ordinance (Time frame):
The duration of the ordinance is only 6 weeks, which is sent to the President for passing by the central government. But the ordinance again comes back to the parliament within 6 weeks. After this again it has to go through all the stages as a normal bill.
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