The government’s refrain that it would resort to all procedures, including a joint sitting of Parliament, to legislate a spate of ordinances into Acts of legislature, may come to nothing if the Rajya Sabha is stalled in the next session.
For one, a pre-condition for a joint sitting is that a Bill, along with a statement of reasons for promulgating the ordinance, should have been first defeated in one of the Houses.
Article 108 of the Constitution cites the three grounds for the President notifying a joint sitting. They are — if one House passes the Bill but the other rejects it or if one House passes the Bill, but six months elapse without the other House passing it after reception, or finally, one House passes the Bill, but the other House passes it with certain amendments which the first House disagrees with and there is a deadlock.
“I think the ordinances will lapse if the Rajya Sabha does not function. To me, if the motion does not come up and is not defeated, there is no chance of a joint session of Parliament. That is, if no business is undertaken, there is no chance of a joint session being called and the ordinances will lapse,” Rajya Sabha member and senior advocate K.T.S Tulsi said.
The Winter Session saw a paralysed Rajya Sabha unable to pass key Bills on insurance and coal mines cleared by the Lok Sabha. Mr. Tulsi said there is every possibility that the standstill may be repeated in the next session. This would leave the fate of the ordinances in a precarious position.
Constitutional expert Subhash Kashyap said ordinarily an ordinance should lapse after six weeks. He said the Constitution makers felt that six weeks, after re-assembling of the Legislature, was enough time to enact the provisions in an ordinance into an Act.
On the other hand, the government would be courting legal trouble if it attempts to re-promulgate the ordinances.
A 28-year-old Supreme Court judgment in D.C. Wadhwa versus State of Bihar has declared that it is the “constitutional duty” of the public to approach the court against re-promulgation of ordinances in a massive scale as a routine measure.
The 1986 judgment was based on a petition by a Pune-based Economics professor, D.C. Wadhwa, who questioned the re-promulgation of ordinances by the Bihar Governor. The court went on to recognise his locus standi as that of a citizen “interested in the preservation and promotion of constitutional functioning of the administration in the country”.
“There must not be an Ordinance Raj in the country,” a five-judge Bench led by the then Chief Justice of India, P.N. Bhagwati, observed in the judgment of December 20,1986.
Supreme Court ruling limits life of ordinances
The government would be courting legal trouble if it attempts to re-promulgate the ordinances. In 1986, the Supreme Court judgment in D.C. Wadhwa versus State of Bihar declared that it was the “constitutional duty” of the public to approach the court against re-promulgation of ordinances in a massive scale as a routine measure.
The apex court held “the power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and cannot be allowed to be ‘perverted to serve political ends’.”
An ordinance is promulgated by the President on the Union Cabinet’s advice under Article 123 of the Constitution. It is a power wielded in circumstances that require immediate action. Ordinances cannot be re-promulgated on a massive scale in a routine manner, the apex court had held.
The judgment held that the apex court can adjudicate if the re-promulgation subverted “the democratic process which lies at the core of our constitutional scheme and subjected people to be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive”.
In such a scenario, critics said, it would be left to the Supreme Court, recently stripped off its Collegium powers of judicial appointments by the National Judicial Appointments Commission, to decide.
The uncertainty may also undermine the government’s surge for an investment-friendly atmosphere. Few investors would like to gamble on such shaky grounds, banking their hopes on the continued survival of the government’s ordinances.
“Propriety demands that the ordinance should lapse (after six weeks) if there is no meeting of minds in the legislature on its provisions,” Mr. Kashyap said.
