What is an Ordinance, its Passage and Validity
With 8 ordinances issued during 225 days of NDA government, limelight has shifted on the term “rule by ordinance”. In this post we go into details of Ordinances, its need, how is it promulgated or passed and its validity. Ordinances are covered under the Polity topic and are important from Prelims as well as Mains viewpoint.
I have posted an image listing the number of ordinances passed since Independence till now.
What is an Ordinance?
An ordinance is an executive order issued by the President of India that holds the same force and effect as an Act passed by the Parliament. The President has the power to issue ordinances under Article 123 of the Constitution. In reality, it is the Union cabinet that forwards proposals for issuing ordinances to the President who merely gives his assent.
Why is an Ordinance Promulgated or Need for Ordinance?
An ordinance can be issued only when both Houses of Parliament, Lok Sabha and Rajya Sabha, are not in session. It is meant as a last resort and not a tool to replace the power or functioning of Parliament. Also, ordinances should, generally, be issued only on pressing issues or issues that require immediate consideration that cannot wait for Parliament to assemble and consider the bill.
Recommended Books for IAS
However, in reality, many times ordinances are issued by the government for lack of consensus in Parliament. If there is a possibility of a bill not being passed in the current session of Parliament, government can take the ordinance route pending its approval by the Parliament during a later session. For instance, the recently enacted ordinance on altering the Land Reforms Act to make it easier to acquire land by the government for public purposes was promulgated fearing uncertainty over passage of the bill in Rajya Sabha where the present government is not in a majority.
As the figure above shows, on an average, 10.3 ordinances have been issued every year even though these are meant as an emergency provision only!
What is the Validity of an Ordinance?
An ordinance, once issued, is valid for six weeks from the date when the next session of Parliament starts. During this period, Parliament can either pass the ordinance turning it into an Act or disapprove the ordinance. If the ordinance is not passed by Parliament, it can be re-promulgated or re-issued by the President (meaning government). There is no limit on how many times an ordinance can be re-issued but as per ruling of the Supreme Court, it cannot be re-promulgated endlessly without getting it to vote in the Parliament or Legislature.
The President can during this period, at any time, withdraw the ordinance.
How is an Ordinance Turned into Act of Parliament
As explained above, an ordinance is only a temporary executive measure. It cannot replace the power and function of Parliamentary process and has to be introduced as a bill in the Parliament for its consideration. Once both houses of Parliament pass the bill, it turns into an Act. This is how a bill that was previously an ordinance becomes an Act of Parliament. However it may so happen that one house passes the bill while other disapproves it or sits on it without voting on the bill. In such a case, a joint session of the Parliament can be called to vote on the bill. However joint session cannot be called for Money bill as Rajya Sabha cannot disapprove a money bill.
Till now, only three joint-sessions of Parliament have been called to vote on bills. A joint session could be called for voting on Mines ordinance and Land Reforms ordinance. But taking the ordinance route is risky as this implies dysfunctional polity where law makers are not able to arrive at a consensus on important national issues.
This also reflects hesitancy on the part of party in power to engage with the opposition and rather take the ordinance and joint sitting route to pass important legislations.
Reference Books for IAS
Topic-wise Books for IAS