UPSC Mains 2022 GS Paper 2 Q12: model answer

Between 1967 and 1981 Bihar re-promulgated 256 ordinances, some kept alive for 14 years without ever going to the Assembly. Researcher D.C. Wadhwa's study of this practice led to a landmark case.

Article 213

The Governor may promulgate an ordinance when the Assembly (or both Houses, where a Council exists) is not in session and he is satisfied that circumstances need immediate action.

Essential conditions

• Legislature not in session; if one House of a bicameral legislature is sitting, no ordinance.
• Satisfaction of immediate need, on the aid and advice of the Council of Ministers.
• The ordinance must be on a subject the State legislature can make laws on.
• Presidential instructions needed where a Bill on the subject would require prior sanction or reservation.
• It must be laid before the legislature and ceases six weeks after it reassembles, unless disapproved earlier.
• It can be withdrawn anytime.

Limits

The satisfaction is reviewable after the 44th Amendment removed the bar inserted by the 38th; courts can strike down an ordinance made in bad faith.

Legality of re-promulgation

• D.C. Wadhwa v State of Bihar (1987): repeated re-promulgation without bringing ordinances before the legislature is a 'fraud on the Constitution' and a subversion of the democratic process.
• Krishna Kumar Singh v State of Bihar (2017), a seven-judge bench: re-promulgation is unconstitutional unless there is a real reason; laying before the legislature is mandatory; failure to lay is a serious breach; rights created by a lapsed ordinance do not automatically survive.
• So re-promulgation without placing before the House is illegal, except in rare, explained cases.

Way forward

• Rule that an ordinance must be converted into a Bill in the first session.
• Disclose the urgency in a statement.
• Allow re-issue only once.

The ordinance is a fire extinguisher, not a legislature.