Home / Politics / Policy /  Supreme Court limits government’s power to issue ordinances

New Delhi: The Supreme Court on Monday placed restrictions on the powers of the government to legislate through ordinances, ruling that ordinances cannot be promulgated repeatedly without being placed before the legislature.

“The question of whether any rights, liabilities, obligations would survive an ordinance which had ceased to exist, would have to be tested against public interest and constitutional necessity," the court said.

A seven-judge bench comprising Chief Justice T.S. Thakur, justices Madan B. Lokur, S.A. Bobde, Adarsh Kumar Goel, U.U. Lalit, D.Y. Chandrachud and L. Nageswara Rao heard a case seeking a definitive ruling on the legality of ordinances that do not have parliamentary sanction even after several years.

“The satisfaction of the President would not be immune from judicial review and the court in this exercise would not have to determine the sufficiency or adequacy of the material," the SC said.

Six judges greed with Chandrachud, with Lokur dissenting.

Under Article 123 of the Constitution, the president is granted legislative powers to issue an ordinance when Parliament is not in session. The law, however, requires that an ordinance be approved by the Lok Sabha and Rajya Sabha within 6 months of its promulgation. Similar powers are granted to governors of states.

Lokur said there was no mandatory requirement for an ordinance to be laid before the legislative assembly on its reassembly and that the power of the executive, once an ordinance had been promulgated, was limited to withdrawal by the governor of the state.

The case being heard related to a 1989 Bihar law for taking control of the management of Sanskrit schools in the state through an ordinance. The ordinance finally lapsed in 1992 after it was repromulgated several times. Sanskrit schools in the state, however, continued to be governed by the state even after the ordinance lapsed.

The apex court held that Bihar’s ordinance and the subsequent repromulgation are “a fraud on the constitutional power".

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