The use and misuse of ordinances by governments

While the Constitution authorizes only Parliament to pass laws, the Centre, through the president, can issue a law on its own when Parliament is not in session and if ‘immediate action’ is required. State governments, too, have similar powers. Such a law, called an ordinance, has to be passed by the legislature within six weeks of the next time it convenes.

All central governments have used ordinances, to different degrees and for different purposes. Some of the peak years were 29 ordinances in 1975 (the year Indira Gandhi declared Emergency) and 34 ordinances in 1993 (some to enable sweeping economic changes underway then). In 2019, 16 ordinances were issued, a number last matched in 1998.

Ordinances have become more frequent under the NDA government’s current term, as compared to the 10 years of UPA. In the 2020s so far, an average of 7.7 ordinances have been issued per year, higher than in the 2000s, but still well below the rate that prevailed between the 1970s and the 1990s.

States Report

The problem with the ordinances provision in the Constitution is that both the Centre and states have frequently misused it, despite several Supreme Court rulings to the contrary. In many cases, ordinances were used despite little indication that there was any pressing need for them, and ordinances have been frequently reissued repeatedly to prevent their legal provisions from lapsing. (An ordinance lapses if it is not passed by the legislature within the time period described above.)

At times, states have issued ordinances more often than the Centre. In the three-year period from 2019 to 2021, Kerala issued 286 ordinances. This is the most by any state in this period and this is despite the Kerala assembly convening for more days in 2021 than any other state assembly. Other big issuers of ordinances during this period were Maharashtra (63), Andhra Pradesh (45) and Uttar Pradesh (41).

Bypassing Assembly

The case of Kerala deserves mention since it issues ordinances at a far greater rate than any other state. According to PRS Legislative Research, 140 of the 144 ordinances issued by Kerala in 2021 were within a month of a legislative session ending, of which, 49 were within two weeks.

At the Centre, the Congress-led government used ordinances actively in the 1990s. One such year was 1993, when it issued 34 ordinances. This being just two years after radical economic reforms were initiated, a number of legal changes involved economic and finance laws such as amendments to the State Bank of India Act, Acts related to gold bonds, reforms to then-government corporations such as IFCI and ONGC, Acts related to foreign exchange, and changes to give banks greater powers to recover their loans. But alongside this, it also used an ordinance to acquire areas around the Babri Masjid in the aftermath of its 1992 demolition.

Reissuing Ordinances

The other big problem with ordinances is repeated reissuance. A seven-judge Constitution bench of the Supreme Court clearly stated in 2017 that this was a “fraud on the Constitution". Numerous other judgments have essentially agreed that the process is clearly against the spirit, if not the letter, of the Constitution.An article by M.R. Madhavan of PRS Legislative Research points out the practice of reissuing ordinances dates back to the 1960s, when Bihar was found to be doing this almost as a matter of routine.

According to data submitted in a famous case, DC Wadhwa vs State of Bihar (1986), the state issued 256 ordinances over 14 years up to 1981; of this, 69 were reissued, some for over a decade. The Centre too has reissued ordinances 42 times. In the case of the Delhi ordinance, the last word has probably not been said.

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