Repromulgation of Ordinances in India

The repromulgation of ordinances in India is a contentious issue that raises fundamental questions about the balance of power between the Executive and the Legislature. Articles 123 and 213 of the Indian Constitution grant the President and Governors the authority to promulgate ordinances when either Parliament or the state legislature is not in session.

However, the Constitution remains silent on the issue of repromulgation—whether an ordinance that lapses can be reissued. This silence has led to varied interpretations and practices, often resulting in the misuse of executive power and undermining legislative supremacy.

Meaning of Repromulgation of Ordinances?

Repromulgation of ordinances refers to the practice where the executive authority (President or Governor) reissues an ordinance that has lapsed because it was not approved by the legislature within the stipulated time. In India, under Articles 123 and 213, the President and Governors can issue ordinances when the Parliament or state legislature is not in session, respectively.

These ordinances have the same effect as laws but must be approved within six weeks of the legislature’s reassembly. Repromulgation occurs when these ordinances are repeatedly issued, often without substantial changes, to bypass the legislative process and maintain the law’s effect without parliamentary approval, raising concerns about the abuse of executive power and undermining legislative authority.

Constitutional Provisions and Ambiguities on Repromulgation of Ordinances

Article 123 of the Indian Constitution empowers the President to promulgate ordinances when Parliament is not in session and immediate action is required. Similarly, Article 213 grants the same power to the Governors concerning state legislatures. These ordinances have the same force and effect as an Act of Parliament or state legislature, but they must be approved by the respective legislative bodies within six weeks of reassembly.

The Constitution’s silence on repromulgation creates a legal vacuum. This ambiguity can be interpreted in two ways:

1. Permissive Silence: Suggesting that since the Constitution does not explicitly prohibit repromulgation, it is allowed.
2. Prohibitive Silence: Indicating that the lack of explicit permission means repromulgation is not allowed.

While many legal scholars and constitutional experts favour the prohibitive interpretation to prevent misuse of executive power, the permissive view has often been adopted in practice.

Historical Context and Examples of Repromulgation of Ordinances

One of the most notable examples of repromulgation is the Land Acquisition Ordinance issued by the BJP government in 2014. Despite lapsing after the mandated period, it was repromulgated three times due to the lack of support in the Upper House. This case exemplifies how repromulgation can be used to circumvent legislative scrutiny and debate.

Another egregious example is from the state of Bihar, where ordinances were repromulgated for up to 14 years, effectively bypassing the legislative process. This practice allowed the Executive to assume a quasi-legislative role, fundamentally challenging the principle of legislative supremacy.

Judicial Interpretations and Key Cases on Repromulgation of Ordinances

Given the constitutional silence, the judiciary has played a crucial role in interpreting the legality and limits of repromulgation. Two landmark cases in this context are D.C. Wadhwa v. State of Bihar and Krishna Kumar Singh v. State of Bihar.

D.C. Wadhwa v. State of Bihar (1987)

In this case, Dr. D.C. Wadhwa challenged the repeated repromulgation of ordinances by the Bihar government. The Supreme Court, in a significant judgment, held that:

“The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law-making function of the Legislature…”

However, the court acknowledged an exception, allowing repromulgation in situations where it was genuinely necessary due to legislative backlog or other exceptional circumstances. This exception, intended to be a safeguard, has often been exploited, leading to the very misuse it sought to prevent.

Krishna Kumar Singh v. State of Bihar (2017)

Justice D.Y. Chandrachud, in this case, provided a more stringent view on repromulgation. He questioned the validity of the exceptions provided in D.C. Wadhwa, arguing that:

“Repromulgation of ordinances is constitutionally impermissible.”

Justice Chandrachud criticised the “hope and trust” principle laid down in D.C. Wadhwa, which relied on the Executive’s good faith to avoid misuse. He emphasised that allowing repromulgation without strict scrutiny undermines the legislative process and the Constitution’s intent.

Legislative Supremacy vs. Executive Necessity

The tension between legislative supremacy and executive necessity lies at the heart of the repromulgation debate. The power to promulgate ordinances is meant to address urgent situations where legislative action is required but cannot be immediately obtained. However, when this power is misused to bypass legislative scrutiny and debate, it undermines the democratic process.

Arguments Against Repromulgation

1. Usurpation of Legislative Power: Repromulgation allows the Executive to effectively create laws without legislative approval, undermining the principle of separation of powers.
2. Undermining Democracy: The legislative process involves debate, discussion and amendments, reflecting the will of the people. Repromulgation bypasses this process, leading to laws that may not have democratic legitimacy.
3. Encouraging Executive Overreach: Allowing repromulgation without strict checks can lead to executive overreach, with the Executive assuming powers meant for the Legislature.

Arguments in Favor of Repromulgation

1. Addressing Legislative Backlog: In situations where the legislative workload is high, repromulgation can ensure that necessary laws remain in force until they can be formally enacted.
2. Responding to Urgent Needs: Repromulgation can be justified in cases of genuine urgency where waiting for legislative approval could result in significant harm or inefficiency.
3. Flexibility in Governance: Providing the Executive with the flexibility to repromulgate ordinances can ensure continuity and stability in governance, especially in times of crisis.

Conclusion

The repromulgation of ordinances presents a complex challenge to the balance of power in India’s constitutional framework. While the power to promulgate ordinances is essential for addressing urgent and unforeseen situations, its misuse undermines the democratic process and the principle of legislative supremacy. Judicial interpretations, particularly in cases like D.C. Wadhwa and Krishna Kumar Singh, have highlighted the need for stringent scrutiny and regulation of this power.

Ultimately, clear constitutional amendments, vigilant judicial oversight, robust legislative mechanisms and increased public accountability are essential to prevent the misuse of repromulgation and uphold the integrity of India’s democratic and constitutional principles.