The President can issue ordinances under Article 123 of the Constitution when one of the houses of the Parliament is not in session. An ordinance has the same force and effect as an Act of parliament. This is a convention that the President does not issue ordinances while Parliament session is going on. The maximum Validity of an ordinance cannot be of more than 6 months + 6 weeks. An ordinance must be approved within 6 weeks after the start of the session of the Parliament. An Ordinance will expire after 6 weeks if it is not approved by both the houses of Parliament.
Amendment in Constitution cannot be made by the ordinance route.
The Ordinance route is used for immediate action i.e., if the President is satisfied that circumstances exists which make it necessary for him/her to take immediate action to make a law, he/she may issue an ordinance as required by the circumstances appearing before him/her. An Ordinance has the same force and affect as an act of Parliament.
The President’s ordinance can also be Judicially challenged.
Similarly, the State Governors can issue ordinance under Article 213 which will be applicable throughout the concerned state.
Ordinance issuing power has been used by President and State Governors on many issues.
The President issued ordinances twice to implement the provisions to Criminalise the practice of Triple Talaq. On 19th, May, 2023 an Ordinance was issued by the President whereby the judgment of the Supreme Court was rendered nullified by handing over the charge over capital’s bureaucracy to the Lt. Governor of Delhi.
Power tussle between Centre and Delhi Government
There has been an ongoing rift between Union government and Delhi government over the issue of control of capital’s bureaucratic set-up. Following is the chronological unfolding of events related to tussle-
- On 11th, May, 2023 the hon’ble Supreme Court, through its judgment, handed over the charge of the capital’s bureaucracy to the elected government of Delhi.
- Chief Minister of Delhi, Arvind Kejriwal, welcomed the decision of the Supreme Court and termed it as a victory of the people of Delhi.
- On 19th, May, 2023 an Ordinance was issued by the President of India on the advice of the Union government, whereby the judgment of the Supreme Court was rendered nullified by handing over the charge over capital’s bureaucracy to the Lt. Governor of Delhi. The AAP government in Delhi called the ordinance illegal, unconstitutional, and a black law.
- Centre is likely to introduce the Government of NCT of Delhi (Amendment) Bill, 2023, popularly known as Delhi Services Bill, which if passed will replace the ordinance promulgated on 19th May, 2023.
The bill aims to allow the centre to retain control over the bureaucracy in Delhi and effectively overrides May 11 Supreme Court judgement which handed the charge of the capital’s bureaucracy to Delhi Government excluding departments connected to police, public order and land.
It will not be easy for the NDA government to get the bill passed because of lack of majority in the Upper House (Rajya Sabha) and also in the light of formation of new alliance – INDIA by the opposition parties to fight jointly against the NDA.
