Why does the President Legislate? | Gireesan and Bendre

by K Gireesan and Chinmay Bendre *

Between 1950 and 2021, a record 756 Ordinances were promulgated by the President of India. Except in 14 cases, Ordinances were generally promulgated when neither House of Parliament was in session. Data shows that 75 Ordinances were allowed to expire and 37 Ordinances were repromulgated. While critics have attacked the Government for fostering an ‘Ordinance Raj’ attitude, examining the underlying causes that have led to the increasing practice of promulgating Ordinances is essential. 

In this paper, the authors argue that the decline in Parliamentary business, depleting productivity of the Houses, legislative pendency leading to implementation delays, and the need for overcoming legislative shortcomings have contributed to the President’s growing reliance on promulgating Ordinances.

The reason British practices have been presented in comparison is because of India’s colonial legal legacy.

MANY PROVISIONS IN the Indian Constitution have been bitterly opposed by the Constituent Assembly. Most widely contested were the provisions relating to federalism, the Uniform Civil Code, and the policy of reservation. However, nothing could spark as much debate and discussion as the provisions governing the President’s powers to promulgate Ordinances.

Between 1950 and 2021, the President promulgated 756 Ordinances (MoPA 2022: 64). The distribution of the Presidential Ordinances promulgated since the 1st Lok Sabha is highlighted in Fig. 1.

Fig. 1: Lok Sabha-wise distribution of Ordinances

These Ordinances were generally promulgated when neither Houses of Parliament were in session. Between 1950 and 2021, just 14 Presidential Ordinances[1] were promulgated when at least one House was in session. Data shows that about 75 Ordinances[2] were allowed to expire during the same period, as they were not laid before the Houses of Parliament for ratification. In retrospect, this appears to be such a waste of public resources, time, and energy.

The practice of re-promulgating Ordinances is another matter of concern. However, the practice in the Union is not as widespread as it is in the States. It was observed that between 1967 and 1983, the Governor of Bihar re-promulgated 256 Ordinances, and one of them, the Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance, remained alive for 13 years, 11 months, and 19 days.[3]  In contrast, the President of India repromulgated 37 Ordinances[4] between 1950 and 2021. The Enemy Property (Amendment and Validation) Ordinance (2016) became the most controversial example of such re-promulgation.

Literature Review

Legislation is historically the responsibility of the Executive, not the Legislature, with the latter having the duty to analyse, criticise, and defend its power to adopt or reject bills. Of course, this is especially true today, as the entire legislative process — from drafting the bill to the control of the debates in Parliament — are all responsibilities of the government. Relevant in this context is Sir Cecil Carr’s observation that, ‘We nod approvingly today when someone tells us that, whereas the State used to be merely policeman, judge, and protector, it now has become schoolmaster, doctor, house-builder, road-maker, town-planner, public utility supplier and all the rest of it’ (Griffith 1950: 1080).

An increase in government functions implies that governments are forced to supplement the legislative work of Parliament with their own efforts. However, such a view is not without criticism. In Britain, critics contend that the ability of the government to enact laws is comparable to the King’s proclamation before the Glorious Revolution (1688), as it strikes at the core of the ‘Parliamentary Sovereignty’ doctrine enunciated in the British Constitution. ‘But the powers of the government existed in the executive sphere before Parliament began its long struggle; the rights of Parliament today have been won by Parliament... The increase in the functions of government has emphasised the fact that the supremacy of Parliament does not mean that Parliament has a monopoly of power’ (Griffith 1950: 1084).
The myth that Parliament controls the Executive and that each Member evaluates legislative proposals on its own merits, votes as per his assessment, and is free from any party discipline, forms the foundation of such a notion. In reality, the party controls every such decision, and majority controls the outcome.

Evidence shows that it is neither desirable nor practical to have a rigid ‘separation of powers’ between the Legislature and the Executive. In the Indian context, ‘the threefold division of powers is partially recognised and the Parliament and the State Legislatures have been given no unbridled legislative powers’ (Trikha and Tripathy 2020: 5370). Scholars from all over the world have sufficiently demonstrated the limitations of Parliament as a legislative body, and they have bestowed special responsibilities on the government to address the intricate and constantly evolving requirements of governance.

Delegated Legislation in Britain

The ‘delegation’ of legislative authority to the British government resulted from the limitations mentioned above. Delegated legislation is defined as the ‘law created by a Minister of the Crown (or other bodies) under powers given to them by an Act of Parliament’,5 [1] and it can take the form of Orders in Council, Orders of Council, Ministerial Orders, Regulations, Rules, Directions, or By-laws known as ‘Statutory Instruments’.

The British government has used delegated legislation more frequently than primary legislation over the years. The growth peaked during the Brexit process, when the government passed over 700 regulations, till December 2020. This figure excludes the 295 regulations that were passed separately that year on account of Covid (Sinclair and Tomlinson 2020). In 2016, the House of Lords Select Committee on the Constitution observed a notable rise in delegated legislation between 1950 and 2014 (HOL 2016: 34). The Brexit process and Covid pandemic only seem to support this trend. The distribution of the use of Statutory Instruments in the United Kingdom between 1950 and 2021 has been outlined in Fig. 2.

Fig. 2: UK Statutory Instruments between 1950 and 2021 [6]

The data above shows that the British government produced 2,100 Statutory Instruments annually between 1950 and 1990. The average skyrocketed to 3,200 during the 1990s, then it increased further to 4,200 during the 2000s. Nonetheless, between 2010 and 2020, the government issued 3,000 Statutory Instruments annually (Briefing Paper 2019: 8). In Britain, delegated legislation has increased for the reasons listed above as well as the addition of new Ministries, changes in the socio-economic policies of the government, and the need for ‘details’ in legislation (Griffith 1950: 1080).

When we compare the data in fig. 2 with the data in fig. 3, we notice that the number of acts passed by the British Parliament has decreased with a rise in the issuance of Statutory Instruments in each succeeding year. In each session between 1950 and 1960, the Parliament passed an average of 78 Acts. Through the 1970s and the 1980s, the average dropped to 73 Acts and 62 Acts, respectively. The average number of Acts the Parliament passed decreased even more in the 1990s to 54, and through the 2000s, the average number of Acts the Parliament passed was just 47. Similarly, between 2011 and 2020, the Parliament passed only 52 Acts continuing the trend (Briefing Paper 2019: 4).

Fig. 3: Acts passed by the British Parliament between 1940 and 2021 [7]

We notice striking parallels between the increasing use of Statutory Instruments in Britain and the promulgation of Ordinances in India. The following section of this study includes the observations that have been made in the Indian context.

Why does the President promulgate Ordinances?

The Indian Parliament does not have a fixed calendar of activities like the British Parliament does. In addition, the Parliament does not meet continuously to undertake business. It is, therefore, more likely to not fulfil its expected legislative obligations. As a result, due to both legitimate reasons and political pressures, the executive overcompensates for this shortage through the Ordinance route.

Decline in Parliamentary Business

The business inside the Indian Parliament shows a declining trend since the 1950s. Data shows that there have been fewer sittings of Parliament, affecting the legislative business significantly.

According to Article 85 (1), ‘The President shall, from time to time, summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.’

 As a matter of convention, the Indian Parliament typically meets three times a year for the Budget, Monsoon, and Winter Sessions. However, the average time spent by each Lok Sabha has been decreasing at an alarming rate. Between 1952 and 1999, the Lok Sabha sat for an average of 6.26 hours per day. From the 13th Lok Sabha, the average time fell further to 4.60 hours per day.[8]

Fig. 4: Number of Sittings held (in Days) in India

Fig. 4 shows a decline in Parliamentary sittings (in days) from the 1st to the 17th Lok Sabha (MoPA 2022: 50-52). As a consequence, the time spent on legislation, budget-making, and question hour has also decreased comparably. Fig. 5 illustrates a general drop in the number of bills passed by the Lok Sabha during the reference period (MoPA 2022: 50-52).

Fig. 5: Bills Passed in Lok Sabha (India)

The Lok Sabha has been passing fewer bills as can be seen in Fig. 5. Only 31 Ordinances were promulgated within a week before the Parliament convened, and 61 Ordinances were promulgated within a week of its prorogation.9 [2] This highlights that Ordinance has become the preferred choice to respond to changing times and circumstances.

Productivity of the House remains an Issue

The Indian Parliament’s productivity is in free fall. Several factors such as the rise in absenteeism of members, the political compulsion of spending more time in the constituency rather than in Parliament, and the lack of relevant information with the members about the nuances of law-making have affected the productivity of Parliament significantly.

In addition, members lack qualified legislative aid to enhance their legislative performance. As a result, few bills are introduced, discussions turn into disruptions, and even fewer bills are passed.

An increase in the number of adjournments of the Houses of Parliament due to frequent disruptions has contributed in a big way to this state of affairs. The declining productivity of the Lok Sabha is shown in Fig. 6.

Fig. 6: Productivity of India’s Lok Sabha [10]

During the Budget Session on 8 May 2013, the Rajya Sabha Chairperson commented that, ‘Three questions, in particular, need to be addressed. One, has the balance between deliberation, legislation, and accountability been lost due to regular disruptions of the proceedings? Two, has the time not come to bridge the growing gap between the rules of procedure and the need felt by different sections of the House to voice opinions on matters of concern? This, needless to say, has to be done in an orderly manner to preserve the dignity of the House. Three, has the membership of this august body assessed the impact of disruptive behaviour on public opinion?’ (Roy 2013).

As we can see by the continued rise in disruptions in Parliament, the situation — far from improving — remains unchanged. The average amount of time wasted due to disruptions between the 10th Lok Sabha to the 17th Lok Parliament is 17.42%. Fig. 7 highlights this pattern.

Fig. 7: Time lost due to Disruptions (in Percentage points)[11]

During the March 2023 budget session of the Parliament, it was reported that Lok Sabha had 83.8 % productivity rate in the first part of the budget session, which came down drastically to 5.29 % in the second part (The Economic Times, 2023). This was due to the opposition’s persistent demand to set up a Joint Parliamentary Committee (JPC) to probe into the Adani issue as well as the demand from the treasury benches that Rahul Gandhi shall apologise for his comment ‘democracy under attack’, made in London. The Minister of State for Parliamentary Affairs, Government of India almost admitted that ‘during the full budget session, overall productivity of the Lok Sabha was 34 % and Rajya Sabha was 24.4 %’ (The Hindu, 2023).

The analysis showed that ‘of all the Lok Sabhas that completed the full five-year term, the 16th Lok Sabha had the lowest sitting days with 331 days. The 17th Lok Sabha in its final year of term has functioned for 230 sitting days only so far. Going by the data, the 17th Lok Sabha could make the shortest full-term Lok Sabha since 1952’. (PRS, 2023)

 Fewer engagements in legislative business and frequent disruptions have depleted Parliament’s productivity over time. Hence, the practice of Presidential Ordinances has assumed more importance than the limited objectives envisaged by the makers of the constitution.

Overcoming Legislative Pendency and Implementation Delays
In a letter written to the then Speaker, GV Mavalankar, on 13 December 1950, Prime Minister Jawaharlal Nehru said, ‘I think all my colleagues will agree with you that the issue of Ordinances is normally not desired and should be avoided except on special and urgent occasions. As to when such an occasion may or may not arise, it is a matter of judgment... Not only the Government of a State, but private members of Parliament are continually urging that new legislation should be passed. Parliamentary procedure is sufficient to give the fullest opportunities for consideration and debate and to check errors and mistakes creeping in. That is obviously desirable. But all this involves considerable delay. The result is that important legislation is held up’ (LSS 2015: ii).

The concerns raised by Nehru were validated by the succeeding Lok Sabhas. Between 1950 and 2014, the President promulgated 29 Ordinances12 when the bills embodying their contents were already laid on the table in Parliament. The fact, that significant laws have lapsed in each Lok Sabha as a result of its dissolution is even more alarming. Fig. 8 illustrates how this trend is advancing with each Lok Sabha. [13]

Fig. 8: Bills lapsed by the end of each Lok Sabha (India)

However, even after the President assents to a bill, it takes an average of 261 days to provide effect to the law. For this, an Official Gazette notification needs to be issued, followed by framing of rules and laying them in each House of Parliament by the Government. In a review of 44 Central laws passed between 2006 and 2015, it took 26% of the laws up to 500 days and 14% up to 1,000 days to take effect (Sengai, Ajey, et al 2016: 45-47).

This is an indication that delays are prevalent not only during legislation but also during the enforcement of laws that include procedural delays and parliamentary oversight. Such creeping delays in the system make the Ordinance a preferred choice for the President.

Overcoming Legislative Shortcomings

Legislation has evolved into a challenging procedure over time. Through its laws, the Parliament has been attempting to address those issues that were never anticipated in the past. However, this development has raised new challenges. Parliament may lack the requisite knowledge on emerging subjects that is available to the Government.

In the past, the President has relied on promulgating Ordinances to address inadequacies in bills that were pending before Parliament. We can take the example of the Criminal Law (Amendment) Ordinance of 1966. On 3 December 1965, a bill was presented on the matter during the 13th session of the 3rd Lok Sabha. In the 15th session, the Government was forced to withdraw the original bill, to introduce a fresh bill that included additional provisions from the Ordinance that had to be promulgated subsequently (LSS 2015: 15). The potential of promulgating a Presidential Ordinance as a ’Quick fix’ cannot be completely ruled out because Ordinances have been historically used as a time-bound instrument to address several issues in the law.

Conclusion

The Constituent Assembly intended the President to promulgate an Ordinance only when circumstances made it necessary.

However, the practice has become more of a norm rather than an exception. Interestingly, the President has promulgated Ordinances on the eve of the Parliament session on numerous occasions. Speaking on this matter on 22 November 1971, the Speaker of the Lok Sabha observed, ‘Ordinances, by themselves, are not very welcome, especially so when the date is very clear. It is not only clear but is also near. In such cases, unless there are very special reasons, Ordinances should be avoided’ (LSS 2015: iii).

However, it could not be ignored that the Ordinances serve a wider purpose in reality. An Ordinance becomes a useful instrument only when the President legislates for an immediate cause.

When we examine the factors in the past that led to the President’s promulgation, we observed that there were fewer malicious Ordinances. As stated in Article 123 (1), ‘immediate action’ has so far been understood to mean that the President must promulgate an Ordinance only when the Parliament Houses are not in session.

However, this understanding is limited and far from reality as the evidence suggests.

The President may still promulgate Ordinances, even if the Parliament does not carry out its constitutional obligations. This interpretation in 1985 led to a landmark judgment in the T Venkata Reddy vs the State of Andhra Pradesh,[14] in which the Court maintained that ‘the motives behind the exercise of this power cannot be questioned’.

 The authors of this paper are not inclined to argue in favour of promulgating (or re-promulgating) Ordinances. ‘There is also little significance in the assertion that the Government is usurping the functions of Parliament by legislating... It is true that formerly, Parliament was able to consider all the details of all the Government’s legislative proposals; now it is unable to do so. But the reason for this is not that a jealous and grasping Government wishes to restrict the Parliamentary function but that Parliament neither has the time, nor is fitted to consider the whole of every proposal’ (Griffith 1950: 1118).

Recent events have compelled us to view the promulgation of Ordinances with disdain. Studying such complex issues should not, however, be done in a silo without advocating for political reforms. Through this paper, the authors have attempted to initiate such discussions.

Keywords: Ordinance, President, Parliamentary Business, Productivity, Legislative Delay, Disruptions

Notes:

[1.] This data was compiled by drawing inputs from the Presidential Ordinances (1950-2014) published by the Lok Sabha Secretariat in 2015 and other sources for the remaining period.
[2.] This figure was drawn by taking inputs from the Presidential Ordinances (1950-2014) published by the Lok Sabha Secretariat in 2015 and other sources.
[3.] For details, please see https://indiankanoon.org/doc/504006/
[4.] This data was compiled by taking inputs from different sources.
[5.] For Glossary on Delegated Legislation, see https://www.parliament.uk/site-information/glossary/delegated-or-secondary-legislation/
[6.] This graph was compiled by drawing inputs from the House of Lords’ 9th Report of Session 2015-16 of the Select Committee on the Constitution and “All UK Statutory Instruments” from 1948 to 2023 from the National Archives of the UK Government; also see, https://www.legislation.gov.uk/uksi
[7.] This graph was compiled by drawing inputs from the Acts and Statutory Instruments: the Volume of UK Legislation 1850 to 2019 of the House of Commons Library and “All UK Legislation” from 1800 to 2023 from the National Archives of the UK Government; also see, https://www.legislation.gov.uk/ukpga
[8.] The average time spent by the Lok Sabha was calculated by drawing inputs from the book, ‘Sixty years of Lok Sabha: A Study’ published by the Lok Sabha Secretariat in 2012, and from the report ‘Vital Stats: Functioning of 16th Lok Sabha published by the PRS Legislative Research in 2019.
[9.] The data was drawn from the Presidential Ordinances (1950-2014) published by the Lok Sabha Secretariat in 2015 and other sources.
[10.] The data was drawn from multiple sources such as ‘Vital Stats: Performance of Parliament during the 15th Lok Sabha published by PRS Legislative Research in 2014; Press Information Bureau release dated Feb 13, 2019, and from the session track-productivity from the Website of PRS Legislative Research as on Nov 12, 2022.
[11.] The requisite data is not available from the 1st to the 9th Lok Sabha. The data presented here was compiled from the book, ‘Sixty Years of Lok Sabha: A Study’ published by the Lok Sabha Secretariat in 2012.
[12.] This figure was calculated by the authors by drawing inputs from the report, Presidential Ordinances 1950-2014, published by the Lok Sabha Secretariat in 2015.
[13.] The data was compiled from different sources such as the Statistical Handbook 2021; Reports on Vital Stats on functioning of Lok Sabha published by the PRS Legislative Research, New Delhi in 2012, 2014, and 2022; and, News published in the daily, The Times ofIndia dated Feb 3, 2014; also see, https://timesofindia.indiatimes.com/india/15th-lok-sabha-to-end-up-as-worst-performing-ever/articleshow/29787750.cms
[14.] For details, see https://indiankanoon.org/doc/1023674/

* (Authors: K Gireesan, Director, MIT School of Government, MIT World Peace University, Pune [Maharashtra;  E-mail ID: gireesan.decentralisation[at]gmail.com ]; Chinmay Bendre, Research Associate, MIT School of Government, MIT World Peace University, Pune [ Maharashtra. E-mail ID: chinmay.bendre[at]mitwpu.edu.in].)

References:

• Briefing Paper. (2019). Acts and Statutory Instruments: the Volume of UK Legislation 1850 to 2019. House of Commons Library; also see, https://researchbriefings.files.parliament.uk/documents/CBP-7438/CBP-7438.pdf
• Assembly Debates (CAD), 1946-1950, The Official Report, New Delhi: Lok Sabha Secretariat, 16th Reprint 2014; also see, http://parliamentofindia.nic.in/ls/debates
• Griffith J A G (1950). Constituent The Constitutional Significance of Delegated Legislation in England, Michigan Law Review. 48(8).
• Lok Sabha Secretariat (LSS) (2015): Presidential Ordinances 1950-2014 [New Delhi: Library & Reference, Research, Documentation and Information Service (LARRDIS), Lok Sabha Secretariat].
• Ministry of Parliamentary Affairs (MoPA) (2022): Statistical Handbook 2021, Government of India.
• PRS Legislative Research (PRS) (2023). Vital Statistics — Parliament functioning in Budget Session 2023, April, 6.
• Roy, Chakshu (2013). The cost of Parliamentary Disruption, Employment News Weekly, 11 June 2013; also, see, https://prsindia.org/articles-by-prs-team/the-cost-of-parliamentary-disruptions
• Sengai, Ajey, et al (2016): Law in Numbers — Evidence-based Approaches to Legal Reform. (New Delhi: The Vidhi Centre for Legal Policy); also see, https://vidhilegalpolicy.in/wp-content/uploads/2020/06/VidhiBriefingBook LawinNumbers.pdf
• Sinclair, A and Tomlinson, J (2020). How abuse of delegated legislation makes a mockery of law-making. Prospect Magazine; also see, https://www.prospectmagazine.co.uk/politics/how-abuse-of-delegated-legislation-makes-a-mockery-of-lawmaking
• The Economic Times (2023). Budget Session: 34% productivity noted in Lok Sabha, 24.4% in Rajya Sabha, informs MoS Meghwal, April 6;
• For details, please see, https://economictimes.indiatimes.com/news/politics-and-nation/ budget-session-34-productivity-noted-in-lok-sabha-24-4-in-rajya-sabha-informs-mos-meghwal/videoshow/99303471.cms
• The Hindu. (2023). Opposition, Centre blame each other for washout of Budget Session’s second leg, April, 7.
• Trikha A and Tripathy A (2020). Separation of Powers: Indian Perspective, Palarch’s Journal of Archaeology of Egypt/ Egyptology. 17(6).
• House of Lords (HOL) (2016). 9th Report of Session 2015-16. Delegated Legislation and Parliament: A response to the Strathclyde Review. Select Committee on the Constitution; also see, https://publications.parliament.uk/pa/ld201516/ldselect/ldconst/116/116.pdf