EXECUTIVE LAWMAKING


ordinance should be placed before the House along with the Bill. The same procedure has to be followed in case of ordinances which embody wholly or partly, or with modification, the provisions of a Bill pending before either of the Houses.


After the promulgation of the ordinance, any Member of either House may give notice of a statutory resolution seeking disapproval of the ordinance and, in case such a notice is admitted, the said resolution is listed and moved before the motion for consideration of the government Bill seeking to replace that ordinance is moved by the concerned Minister. However, the statutory resolution and the motion for consideration of the Bill are generally discussed together. After the discussion, the resolution is put to a vote of the House first, and if the resolution is adopted, the Bill replacing the ordinance falls through.


On the other hand, if the statutory resolution is negatived, the motion for consideration of the Bill is put to a vote and further stages for consideration and passage of the Bill are followed as usual.


Generally, an ordinance replacing a Bill is not referred to a department- related parliamentary standing committee for examination and report mainly because an ordinance, unless replaced by a Bill passed by both the Houses of Parliament, ceases to operate on the expiry of six weeks from the re-assembly of Parliament. The government priority, therefore, remains to get the Bill passed within the stipulated period. However, as stated above, there have been instances when Bills replacing ordinances were referred to standing committees for examination and report.


Whenever a Bill pending before one of the Houses of Parliament, in respect of which an ordinance has been issued, comes up for consideration, the concerned Minister proposes an amendment to the Bill inserting a new clause, known as a Repealing and Saving clause, at the end of the Bill.


Insertion of this new clause


has two effects: first, it repeals the ordinance issued on the Bill and, secondly, it validates all the acts and actions taken in pursuance of the ordinance.


A not-so-exceptional occurrence


Even though the power of the President to issue ordinances is, in the nature of things, exceptional in terms of the doctrine of separation of powers, since the coming into existence of the Parliament of India in 1952 until now there has been only one year (1963) when no ordinances were issued. In the first year itself, nine ordinances were issued.


The number of ordinances has waxed and waned over the years. But, as Table 2 demonstrates, there have years when ordinances have had a field day, making legislative powers


“There have been instances when ordinances have lapsed either on account of a lack of consensus on the legislative matter or because the Bill to replace the ordinance was referred to a standing committee. ”


of the Parliament look somewhat redundant.


The issuing of such a large number of ordinances in these years is, to say the least, a sad commentary on parliamentary oversight of the executive. It shows that in those years the Parliament, to a certain extent, relinquished its legislative authority in favour of the executive.


The judiciary too, in terms of the scheme of the Constitution of India, cannot enquire into the motives of the


Table Two: Number of Ordinances Issued in Certain Years


YEAR


1971 1975 1992 1993 1996 1997 1998


NUMBER OF ORDINANCES ISSUED


23 29 21 34 32 31 20


government in issuing ordinances or question the propriety of issuing them. It can intervene only if an ordinance is ultra vires the legislative powers of the Parliament or it is unconstitutional or the power has been exercised by the Executive in a mala fide or perverse manner.


The provision in the Constitution of India regarding legislative powers of the President of India raises the issue of the integrity of the democratic process vis-à-vis executive expediency.


It is no doubt true that in the context of the practice of the Indian Parliament, which does not continuously remain in session and is prorogued at the end of each of its three sessions (Budget, Monsoon and Winter), at times circumstances do exist which necessitate the promulgation of ordinances. However, it has been observed that very often the executive takes the ordinance route in order to bypass legitimate parliamentary procedures. This has become particularly prominent since 1993, when department-related parliamentary standing committees were constituted, inter alia, to examine and report on the Bills introduced in the Parliament.


Since a Bill replacing an ordinance has to be approved by Parliament within six weeks of its re-assembly, the reference of a Bill to a standing


committee is either given a go-by or the matter is hustled through, since normally the standing committee is given three months to report and usually takes much more time.


Juris prudent?


The executive, whenever it is confident of mustering the requisite majority in both the Houses of Parliament and wants to exhibit its resolve to tackle a political or legislative problem, goes ahead with the promulgation of an ordinance. However, the road to legislation through the ordinance route is not always smooth.


There have been instances when ordinances have lapsed either on account of a lack of consensus on the legislative matter or because the Bill to replace the ordinance was referred to a standing committee.


Ultimately, it all boils down to how constitutional morality is perceived and practised by the stakeholders. Coming back to the law in


question, it is a truism that an effective criminal justice system does not depend solely on strict laws. For the justice system to be not only effective but also to be seen as efficient, it should inter alia also ensure certainty and swiftness in the delivery of punishment.


The quantum of punishment is thus only one of the elements of an effective criminal justice system.


The Parliamentarian | 2013: Issue Two | 135


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