Repromulgation of Ordinance(s): A Constitutional Subterfuge
This article has been published by Sakshi Komal Dubey, II year student of law at Vivekananda Institute of Professional Studies, Guru Gobind Singh Indraprastha University.
Repromulgation of Ordinance(s): A Constitutional Subterfuge
“The principles of a free constitution, are irrecoverably lost when the legislative power is nominated by the executive.”
~ Edward Gibbon
The unscathed existence of the Constitution of India even after 75 years of Independence is proof of the fact that the framers of the Constitution were perceptive and astute. But they were not prophetic; they failed to assess that humans have the cognitive capability of interpreting the words as per their convenience and exploiting the loopholes.
Article 213 of the Constitution enables the Governor to promulgate and repromulgate an Ordinance when both the houses of the State Legislature are not in session and circumstances are such that such promulgation of an Ordinance is immediate and necessary in the public interest. The powers vested are similar to that of the President under Article 123 of the Constitution.
If the said ordinance has to be kept alive after 6 months and 6 weeks, it has to be repromulgated. The advent of pandemic and the subsequent lockdown nurtured this practice of what the critiques have termed as ‘Constitutional Terrorism’.
This article shall raise two pertinent questions in the mind of the readers. Firstly, what shall be done when the judiciary interprets a constitutional provision but the other organs continue to subvert it. Since it is the judiciary that has been entrusted with the responsibility to shield and safeguard the constitutional provisions, the second question pertains to the stage at which the Judiciary shall take up to themselves to rectify the flaw in their pronouncement if it is being abused.
The two landmark precedents which positioned the interpretation of Articles 123 & Article 213 of the Constitution are Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors. and Krishna Kumar Singh & Anr. v. State of Bihar & Ors.
Justice P.N. Bhagwati in D.C. Wadhwa enunciated upon the question of whether the Governor can indefinitely repromulgate ordinances taking over the power of the law-making upon himself by the virtue of the power conferred upon him under Article 213 only to enable him to take immediate action when both the Houses of the Legislature is not in session. The Court termed the practice as “fraud on the constitutional provision” and stated:
The rule of law constitutes the core of the Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations.
When the makers of the Constitution did not explicitly mention the number of times an Ordinance can be repromulgated, they expected that if the provisions of the Ordinance are to be continued for the welfare of the people, the Legislature will pass the said ordinance as an Act.
The Royal Doctrine
The Doctrine of Separation of Power holds its value in the independence of the three organs of the government, namely, legislature, executive and judiciary. They cannot exist independently but they shall also not coincide. Additionally, the Doctrine of Colourable Legislation implies that whatever cannot be done directly, cannot be done indirectly. It is a colourable exercise of power when the Government via the Executive surpasses the Legislature.
To this effect, Mr. Hriday Nath Kunzru, a member of the Drafting Committee, proposed a change in sub-clause (a) of clause (2) of the draft Article 187 (presently Article 213) to reduce the period for an Ordinance to remain in force considerably. He argued that as the ordinance was the result of executive powers, it should be subject to the scrutiny of the Legislature as soon as possible.
The promulgation that is permitted in extraordinary situations shall not be taken as an ordinary drill exercise. It is a constitutional subterfuge when such power which has to be used sparingly in exceptional and extreme circumstances has been made an ordinary accepted practice.
The Judicial Aperture
The Court while adjudicating over the cases left the ends untied that are now used by the Government for their own advantage. The Court in D.C. Wadhwa held:
Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance.
This left an escape route for the executive. Whenever there has been outright criticism of ‘Ordinance Raj’, the Union Government and State Governments have justified their action by putting forward the shield of obstruction caused during sessions by the opposition or lack of time. It has become a settled practice to go on repromulgating the ordinances methodologically and without a sense of deliberateness.
Similarly, in Krishna Kumar Singh, the Court held that, “The second requirement is that the Governor, before issuing an Ordinance has to be satisfied of the existence of circumstances rendering it necessary to take immediate action.”
It gave the government their shoulder to fire their guns from. Even though not intended, the Governor has been made the parallel-law making body. The terms were not made certain and left at the behest of the Government to decipher. The Court ultimately left the decision at the discretion of the Executive which gave it a loose end to tie according to its wishes.
The Constitution places no such limit on the number of times the Legislature can call a session and the time limit of the sessions. Dr. B. R. Ambedkar had expressed that owing to the parliamentary structure of our democracy there can be more sessions of Parliament than just two as prescribed by the Constitution as the minimum number of sessions.
Article 137 of the Constitution empowers the Supreme Court to review its judgements subject to the provisions of any law made by the Parliament or any rules made under Article 145 of the Constitution. When the court exercises the power of review while overruling an earlier view, it does not do so as a Court of Appeal, but it is exercising its inherent powers. In such cases, the test should be is it absolutely necessary and essential that the question already decided should be re-opened? The answer to this is question would inter alia depend on its impact on public good and the validity and compelling character of the consideration urged in support of the contrary view.
The court is not precluded from recalling or reviewing its order if it is satisfied that it is necessary to do so for the sake of justice. However, as the decision of the Apex Court is binding on all the subordinate courts by the virtue of Article 141, the court has to be satisfied with unanimity amongst its members, that a revision of the said view is necessary in the interest of justice.
The practice of repromulgation of Ordinance violates the provision of the Constitution in two ways. One, the executive overshadows the responsibility of the legislature which has been endowed upon the legislature by the Constitution. Two, the executive jeopardises the legislature or the ‘law-making’ body of its duty annihilating the distribution of power and democratic element of the organ.
The process of law-making makes sure that a Bill before turning into an Act has to go through rigorous scrutinization; has to be impermeable and should stand the test of all times and circumstances. The brazen misuse of Articles 123 and 213 highlights the importance of debates and discussions, and opposition in a democratic parliamentary form of government. The judiciary should take a step toward calling out the cavalier attitude of the government respecting the notion of checks and balance.
The Ordinance way is a behind curtain provision. The citizens have the right to know the aims and objectives of the government behind tabling a law that will govern them and their generations. This practice not only subverts the choice of the people but also the spirit of democracy.
The grundnorm vested the powers in the Apex body expecting that in any case, it will act in the interest of justice and not be a silent spectator. The Supreme Court by being a silent spectator is also upsetting the Constitution.
(The views and opinions expressed in this article are the author’s own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi)
 Abhishek Sinha, Ashraya Rao, et.al., “The Ordinance Game- Observation from the Dugout”, SCC ONLINE.
 Constituent Assembly Debates on June 14, 1949 available at: http://126.96.36.199/loksabha/writereaddata/cadebatefiles/C14061949.html (last visited on Feb 11, 2022).
 D.C. Wadhwa, “Executives Law Making: Lesson from East India Company”, 28 Journal of Indian Law Institute 192 (1986).