The President’s Power to Pass Ordinance

On Monday, ending confusion among aspirants and their guardians as well, the President Parnab Mukherjee signed the ordinance that was given green signal by the Parliament on May 20. The ordinance in question was brought to ‘partially’ overrun a Supreme Court ruling that said all Government colleges, deemed universities and private medical colleges would be covered under NEET (National Eligibility Cum Entrance Test).

According to this executive order, the students belonging to State Governments boards will not have to sit for NEET on July 24, 2016. However, they are going to be part of this uniform entrance exam from the next academic session.

Prior to the nod of the President, the confusion over the fate of this particular executive order ordinance got into confusion as a news got circulated in the mainstream electronic media that the President had sought the suggestion of the Attorney General on the executive order; it resulted in the understanding that now the issue of NEET would take more time as Attorney general being on leave and the President had to go China on an official visit.

All these events led to a central theme: the theme of issuance of ordinances and its validity in the context of India democracy.

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Defining Ordinance

Giving definition of an Ordinance, A Dictionary of Law by William C Anderson says, ‘Ordinance, is a State paper, operative as a fundamental law, yet not described as either a Constitution or a Statute.’

Simply put, Ordinances are executive orders, signed by the President of India, that command the same force and effect an Act passed by the Parliament does have.

Article 123 of the Constitution of India grants the power to issue ordinances to the President of India.

However, the reality behind issuing and passage of  ordinances is that it is the Union Cabinet that, finally, gives green signal for issuing ordinances to the President who has to merely give his assent.

Read Also: National Eligibility-cum-Entrance Test Order : A Dilemma  

On the Need for Ordinance

An ordinance, ordinarily considered as a last recourse and not an instrument to sideline the power or functioning of Parliament, can be issued only when both houses of Parliament Lok Sabha and Rajya Sabha are not in session.

It has been presumed that generally ordinances should be issued only on issues which need immediate consideration and cannot wait for Parliament to assemble and consider the bill.

However, when we shift from theory to practical in the context of making of an ordinance we are made to comprehend that, in reality, many times ordinances are issued by Governments due to the lack of consensus, on the issue in focus, in the Parliament.

The most practical side of issuing an ordinance is that if there remains a possibility of a bill of being rejected in an ongoing session of Parliament, the Government can take the route of issuing an ordinance pending its approval by the Parliament during a later session.

It is important to mention here that if one goes through the history of passage of ordinances in India one will find that on an average, 10.3 ordinances have been issued every year even though these are to used as an emergency provision only.

Dealing with the promulgation of an Ordinance sub-clause (a) of clause 2 of the Article 123 of the Constitution of India says: An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance “shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions”.

Sub-clause (6) of clause 2 of the Article 123, however says that an ordinance ‘may be withdrawn at any time by the President’.

During the Validity period, that is of six weeks, of an ordinance, Parliament can either pass the ordinance transforming it into an Act of disapprove the ordinance. If the Parliament fails to pass it, the ordinance can be re-issued by the Government (Constitutionally the President).

The Constitution of India does not put any time limit as there is no limit how many times ordinances can be re-issued. However, the Supreme Court, in the context of the re-issuance of the ordinances, has ruled that an ordinance cannot be re-issued endlessly without getting it to vote in the legislature.

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1 COMMENT

  1. Good info sir. While giving previous supreme court ruling kindly mention the case in which it has ruled. Thank you sir

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