Ordinance in legislatures

Ordinance - What is it?

It is like a legislative act/ bill. It has the same force and effect. Only difference - These are temporary in nature. These have to be replaced by a suitable act in future.

Who can do it?

Executive Head i.e. President (by Art. 123) (Governor in case of states (by Art. 213)) can promulgate ordinance, subject to four constraints -

1. Only when both or any of the house is not in session (i.e. when in recess). So, it is not a power legislative power.
2. Only when President is satisfied that immediate action is required. In Cooper case (1970), SC held that President's satisfaction can be questioned in the court on the ground of malafide. So it is justiciable.
3. This ordinance is just like a law i.e. 
1. it can deal with only on Union list/ concurrent list subjects
2. subject to all those limitations that of a law
4. The ordinance must be laid before the house once it reassembles. 3 course of action can follow
1. gets approved - become an act.
2. Parliament takes no action - the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament
3. gets disapproved by Parliament resolution - ceases to operate from the date of disapproval 

Some more points

• maximum life of an ordinance can be six months and six weeks 
• In case the ordinance lapses, the acts done under it remain valid and effective.
• President also can withdraw an ordinance at any time.
• This ordinance related power of President is not a discretionary power. 
• Ordinance can be retrospective.
• It can repeal or modify any previous law or ordinance.
• It cannot amend the constitution.
• In British India, Viceroy was empowered with the power to issue ordinances by the Indian Councils Act, 1861. 
• Other than that, ordinance making power is not found in modern democratic world such as USA or UK.

After the Ordinance is Promulgated...

• The government attempts to replace the ordinance with a suitable bill/ act. 
• In this scenario, Rules of Business in Lok Sabha requires a statement explaining the emergency situation also to be placed before the house.

Recent Developments

The NDA government which came to power at the center in May 2015, has majority in Lok Sabha, but falls way short of the half-way mark in the Rajya Sabha.

This has led to promulgation of a number of ordinances since then. Notable among them are -

1. Coal Mines (Special Provisions) Ordinance, 2014 (Sep, re-promulgated in Dec)
2. Land Acquisition
3. The Insurance Laws (Amendment) Ordinance, 2014
4. TRAI (Amendment) Ordinance, 2014
5. Mines and Minerals (Development & Regulation) Amendment Ordinance, 2015
6. Motor Vehicles (Amendment) Ordinance, 2015
7. Citizenship (Amendment) Ordinance, 2015 - converted into act in budget session

President's Concern

References

1. Laxmikanth

2. PRS Blog