EXECUTIVE LAWMAKING
The shocking attack on a young woman caused a wave of mass protests across the country.
On 18 March, the government convened an all-party meeting in order to arrive at a consensus before moving the Bill in Parliament. The next day, the Home Minister introduced The Criminal Law (Amendment) Bill 2013 in the Lok Sabha and fast-tracked its consideration and passing. When the Bill was taken up for discussion on the same day, the Home Minister proposed certain amendments based on the consensus arrived at during the all- party meeting.
An earlier Bill of the same title, introduced in the Lok Sabha in December 2012, was simultaneously withdrawn. The upper House (Rajya Sabha) approved the Bill, as amended by the Lok Sabha, on 21 March. The statutory resolutions seeking disapproval of the ordinance, moved in
both the Houses, were negatived. The Bill received President’s assent on 2 April and became the law of the land.
Presidential law-making The Constitution of India, in Article 123, makes provision for legislative powers of the President. Going by the doctrine of the separation of powers, as practised in parliamentary democracies around the world and particularly in Commonwealth countries, this provision is quite unique. However, in another sense, it is not so unprecedented since it derives from an identical provision in the Government of India Act 1935, which preceded the constitution of independent India. Table 1 confirms the correspondence:
The President may issue an ordinance to enforce the provisions
of a Bill introduced in and pending before a House, or to enforce the provisions of a Bill already passed by one House but pending in the other House, or an entirely new matter to be replaced subsequently by a Bill to be brought before the Houses. In the present case, The Criminal Law (Amendment) Bill, 2012, introduced in the Lok Sabha on 4 December 2012, was pending before Parliament at the time of promulgation of the ordinance. In any case, an ordinance has a definite shelf-life and lapses if a Bill replacing it, with or without modification, is not passed by both Houses of Parliament within six weeks of the re-assembly of Parliament following the issue of the ordinance.
Further, the ordinance etiquette practised in the early days of the
coming into force of the Constitution of India required that an ordinance should not be issued after the issuing of a summons convening a session of Parliament, if a Bill on the subject is pending in Parliament or a Bill is ready but has not been introduced in Parliament.
These niceties have been given a go-by over time. There have been occasions when one of the Houses has been prorogued to enable the issuing of an ordinance, since the constitution prescribes that an ordinance cannot be issued if both Houses are in session. On the other hand, occasionally Parliament has reaffirmed its supremacy by either not allowing the Bill to replace the ordinance to be passed within the prescribed time-frame or agreeing to refer it to the department-related
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