This article is written by YAKASIRI UMA MAHESWARI, (B.A.LL.B), SRI PADMAVATI MAHILA VISVAVIDYALAYAM, during her internship with LeDroit India.
Abstract
Ordinances are laws enacted by the President while the Parliament of India is in session. It can regulate any subject on which Congress has legislative power. The regulatory promulgation strategy is intended to enable the executive branch to respond to unforeseen circumstances that arise within the country while Congress is not in session. The president and governors have legislative powers, including the power to issue executive orders for use in specific crises, but they also have the power to issue regulations while Congress is not in session. These regulations, although temporary, have the same powers and effects as legislation. Governor’s Pardon Power Governor’s discretionary power compares the pardon power of the president and the governor. Presidential and Governor Veto Powers. The Governor’s Constitutional Decision-Making Power. Governor’s power to determine status over ordinance property.
Regulations can be retroactive. This means that it can be published before approval. Cabinet orders issued while the Diet is in session are considered invalid. For this ordinance to remain valid, it requires the assent of Parliament within six weeks of its reinstatement. If Parliament does not act within six weeks of its creation, its existence will cease. The laws, regulations, and happenings resulting from this regulation will remain in force until the regulation expires. The President of India is one of the few world leaders with the power to issue orders. The promulgation of rules cannot be considered as a substitute for the legislative power of the President. Regulation can only be made in respect of matters for which the Parliament of India has the power to make laws. This order cannot be used to deprive citizens of their fundamental rights guaranteed by the Indian Constitution. The regulation would also be declared invalid if both houses passed resolutions against it.
Keywords: promulgated regulations, decision-making rights, fundamental rights of citizens, legislative power of parliament, bicameral law.
Introduction
A regulation in the context of governance and law is a legal document promulgated by a non-legislative body, usually an executive body, in specific circumstances.
The provisions of this order are primarily intended to enable the executive branch to enact laws when Congress is not in session or when urgent issues require immediate attention. Regulations generally have the same force and effect as laws enacted by Congress. The only difference between the two is that laws are permanent while regulations are temporary in nature. Constitutional Provisions for Ordinances of India. The Constitution of India provides for the promulgation of ordinances by the President of India and the Governors of States.
The Constitution provides as follows:
- Article 123: Authorizes the President to make regulations during the National Assembly session. Authorizes the Governor to issue executive orders while the Legislature is in recess. The authority of the President and Governor to issue executive orders is discussed in more detail in the next section.
presidential command authority
- Article 123 of the Constitution gives the President the power to issue regulations during recess of Congress.
- The Constitution places the following four limitations on the president’s authority to issue executive orders.
- The president can issue a decree only when both or one house of Congress is in session. Orders issued by the President while both Houses of Parliament are in session are null and void.
- Therefore, the President’s power to issue regulations is not equivalent to law. The president may issue orders only if he believes that circumstances exist that require immediate action.
- Except for time limits, the president’s powers in all areas are equivalent to the legislative powers of Congress.
- Therefore, orders can only be made in respect of matters for which Parliament has the power to make laws. Regulations are subject to the same constitutional limitations as acts of Congress.
- Therefore, this order cannot limit or exclude any fundamental rights. Decrees issued by the President while Congress is in session must be submitted to both houses when Congress resumes. Congress has three options regarding the proposed ordinance.
Approval of the Ordinance
- If both the House and Senate approve the regulation, it will become law immediately. Challenges to regulations.
- If both houses of Congress pass objections to this regulation, it will be repealed immediately.
- If Congress does not act on the regulation, it would expire six weeks after Congress adjourns.
- If Parliament meets on a different day, the six-week period is calculated from the next day.
- Therefore, if not adopted by Congress, the regulation will remain in force for a maximum of six months and six weeks.
- In fact, the maximum possible length of a parliamentary session is six months.
Regarding presidential orders, the following points should be noted:
- Even if a Decree is not submitted to Parliament and ceases to have effect, any acts enacted and carried out under that Decree before it ceases to have effect shall remain in full force and effect.
- The President may issue or revoke orders at any time. However, it should be noted that the president’s command authority is not arbitrary.
- Regulations can only be issued or withdrawn on the recommendation of the Federal Council of Ministers (CoM).
- Acts of Congress or other regulations may be amended or repealed. Tax laws may change.
- The Constitution cannot be changed and the power of the governor to issue orders.
- Article 213 of the Indian Constitution empowers the Governor to issue orders when the State Legislature (or Parliament in states with bicameral legislatures) is in session.
- The governor’s authority to issue executive orders is almost the same as that of the president.
- The same can be better understood by comparing the command authority of the governor and the command authority of the president.
Utilizing recipes:
Emergency Measures
• These are emergency measures taken by operators to deal with unforeseen circumstances or urgent problems. This allows the executive branch to respond quickly to such issues without having to wait for the normal legislative process. unimpeded governance
• Even if some bills have been fully debated in the Legislative Assembly, they may not be passed due to obstruction from opposition parties. Issuing regulations will ensure that management is not hampered in such cases.
Limit Command Authority
• Violation of separation of powers: As per the system of separation of powers as provided in the Indian Constitution, legislation is under the jurisdiction of the legislature. By allowing the executive branch to intervene in the legislative field, the provisions of this regulation violated the principle of separation of powers.
• This undermines democratic principles. The executive branch may choose to promulgate regulations to avoid debate and debate in the Legislative Assembly regarding controversial legislative proposals.
This undermines democratic principles
- Abuse: In some cases, government ordinances were repromulgated one after another without any attempt to submit a corresponding bill to the National Assembly.
- As the Supreme Court of DC. Wadhwa pointed out that several ordinances in Bihar were implemented during his 14 years from 1967 to 1998 and were re-enacted one after another.
- Fear of Decrees: The frequent issuance and reissuance of orders creates an atmosphere of “decrees” in which the executive relies on orders rather than engaging in meaningful legislative processes.
Ambiguous regulations
- Under the Constitution, the president or governor may issue an order only if he or she believes that circumstances exist that require immediate action.
- However, due to the lack of clear delineation of emergencies, the executive branch often relies on this power rather than viewing it as the final solution.
Such examples are:-
- Securities Laws (Amendment) Ordinance, 2014: This Ordinance was re-enacted for the third time during the term of the 15th National Assembly, raising concerns about circumvention of the legislative process and lack of parliamentary oversight.
- Medical Council of India (Amendment) Ordinance, 2010: This Ordinance has been re-enacted four times, demonstrating continued disregard for judicial decisions and democratic norms.
The order is challenged on the following grounds:
- This is a hidden law, Alternatively, this would be a violation of one of the fundamental rights mentioned in the Constitution. Alternatively, it violates important provisions like Article 301 of the Constitution.
- Otherwise, the retroactive measure is unconstitutional. However, regulations issued by the executive branch are considered a single entity.
- The President is the head of the executive power and issues regulations based on the opinion of the Council of Ministers.
- The most important requirement for issuing regulations is “immediate action.” That way, it will not be difficult to ensure the President’s satisfaction when the actual need or necessity arises to issue an order.
“Command power is intended for exceptional situations, not for realizing personal political goals. It is against democratic norms for the executive branch to enact laws, but it is necessary to deal with emergencies. This power belongs to the President and should therefore be temporary.”
The power of judicial review of orders was again discussed in the 1998 case of Krishna Kumar Singh v. State of Bihar.
- In this case, the Supreme Court set aside a number of orders as there was no concrete basis for their implementation. The power of the president has been proven. He also said there was “no explanation given to justify promulgating this regulation rather than another.”
Although the Supreme Court has been forced to conduct some degree of judicial review due to the president’s wasteful use of the authority to issue executive orders, the nature and scope of judicial review of executive orders by the president and governors remains unclear.
Power to issue orders – judicial perspective
The 38th Constitutional Amendment Act of 1975 expanded the president’s powers to issue orders other than through judicial review, but this provision was removed by the Constitutional Amendment Act. In the 44th Congress in 1978 in response to the Supreme Court’s ruling that presidential gratification may be justified by breach of trust.
- RC Cooper v. Union of India (1970) The Supreme Court in this case held that the President’s decision on an order is appealable because the order does not require immediate action or is issued primarily to avoid controversy or controversy. He said it was possible. Discussion in the Legislative Council.
- DC Wadhwa Case (1987) The Supreme Court in this case held that continuous promulgation of ordinances containing the same wordings without any attempt to pass the bill in Parliament/Parliament is unconstitutional and the ordinance shall be repealed.
It was decided that the constitutional and legal validity of orders signed by the President/Governor may be challenged in court on the following grounds:
- If this violates fundamental rights guaranteed by the Constitution.
- If it violates important provisions or basic structure of the Constitution.
- When retroactivity is unconstitutional.
- Whether the President’s exercise of executive power was motivated by malice or not.
Conclusion
Commands are almost always a controversial topic and subject to debate. It seeks to disrupt the balance between the executive and legislative branches by introducing an element of arbitrariness into the constitutional system and weakening the rule of law. Whenever the executive branch exercises such power, it shows contempt for the legislative branch.
So far, the reasons cited for challenging the validity of this order include (a) direct violation of constitutional provisions, (b) decision made by the President in excess of his constitutional authority, and (c) All that is said is that the president used words that coloured his own thinking. strength.
References:
- https://legalaffairs.gov.in/sites/default/files/Article
- (1970) AIR, UOI
- https://byjus.com
- https://legalservices.com
- https://testbook.com
- 1987 AIR 579.
