Everything about Ordinance

What is an ordinance and who makes it?

  • Article 123 of the Indian Constitution grants the President of India to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law.
  • Ordinances may relate to any subject that the parliament has the power to make law, and would be having same limitations.

When an ordinance can be issued?

  • When legislature is not in session.
  • When immediate action is needed: Here the Supreme Court has clarified that the legislative power to issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an emergent situation’.

How parliament exercises control over ordinance making power of President? 

  • The constitution provides two parliamentary checks vis-a-vis the promulgation of ordinance [Art 123(2) (a)]:
  • The power of parliament to pass resolutions disapproving the provisions of the ordinance.
  • The automatic expiry of the ordinance within six weeks of the reassembly of the houses of the parliament unless passed by the parliament; this gives a chance for the parliament to debate on the ordinance and review it accordingly.

Ordinance making powers of the Governor

  • Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
  • The powers of the President and the Governor are broadly comparable with respect to Ordinance making.
  • However, the Governor cannot issue an Ordinance without instructions from the President in certain cases where the assent of the President would have been required to pass a similar Bill.

Key debates relating to the Ordinance making powers of the Executive.

  • There has been significant debate surrounding the Ordinance making power of the President (and Governor).
  • Constitutionally, important issues that have been raised include:
  • Judicial review of the Ordinance making powers of the executive;
  • The necessity for ‘immediate action’ while promulgating an Ordinance;
  • And the granting of Ordinance making powers to the executive, given the principle of separation of powers.

Important Cases:

  • In 1970, RC Cooper vs.Union of India Case the Supreme Court, held that the President’s decision on Ordinance could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
  • In 1980, AK Roy vs.Union of India case the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.
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 Parliamentary vs Presidential System

Does India need a presidential system?

Arguments :-

  1. Against

Debate can be divided in to feasibility and desirability

  1. In the existing constitutional scheme, change is not possible. Supreme court of India already held parliamentary form of Government as part of the basic structure of the constitution.
  2. Presidential system centralizes power and chances of it turning in to an authoritative system are high.
  3. If India’s diversity is taken in to consideration, it is not advisable to have a presidential system. Presidential system do not reflect the diversity well.
  4. Presidential system can create a stalemate situation between executive and legislature.

2. Favor

  1. Presidential system allows for quick decision making . Fixed term for executive makes him invulnerable from the politics of the day and provides stability. Decisiveness is necessary for India to deal with its enormous challenges.
  2. Accountability is better in Presidential system. Unlike in parliamentary system where Executive enjoys majority, there is no guarantee for the same in presidential system.
  3. President appoints his officers. It can bring in more talent in to the system.
  4. Parliamentary system have distorted voting preference of voters. It mean that voters are forced to vote for a candidate to have a particular leader as CM or Prime Minister.
  5. India will not have a US style two party grid lock. So issue based coalitions comes in to picture. It helps for greater debate in the houses.
  6. Most of the legislatures coming in to the houses are with little legislative experience and are participating in elections to get hold of executive power. It mean that they can not act as an effective legislative control.

Everything About the Rajya Sabha

Rajyasabha

  • Our Parliament comprises of the President and the two Houses—Lok Sabha (House of the People) and Rajya Sabha (Council of States).
  • The origin of the Rajya Sabha (Council of States) can be traced to the Montague-Chelmsford Report of 1918.
  • The Government of India Act, 1919 provided for the creation of a ‘Council of State’ as a second chamber of the then legislature with a restricted franchise which actually came into existence in 1921. The Governor-General was the ex-officio President of the then Council of State.
  • The Government of India Act, 1935, hardly made any changes in its composition.
  • The Constituent Assembly, which first met on 9 December 1946, also acted as the Central Legislature till 1950, when it was converted as ‘Provisional Parliament’.
  • During this period, the Central Legislature which was known as Constituent Assembly (Legislative) and later Provisional Parliament was unicameral till the first elections were held in 1952.
  • Extensive debate took place in the Constituent Assembly regarding the utility or otherwise of a Second Chamber in Independent India and ultimately, it was decided to have a bicameral legislature for independent India mainly because a federal system was considered to be most feasible form of Government for such a vast country with immense diversities.
  • A single directly elected House, in fact, was considered inadequate to meet the challenges before free India.
  • A second chamber known as the ‘Council of States’, therefore, was created with altogether different composition and method of election from that of the directly elected House of the People.
  • It was conceived as another Chamber, with smaller membership than the Lok Sabha (House of the People).
  • It was meant to be the federal chamber i.e., a House elected by the elected members of Assemblies of the States and two Union Territories in which  States were not given equal representation.
  • Apart from the elected members, provision was also made for the nomination of twelve members to the House by the President.
  • The minimum age of thirty years was fixed for membership as against twenty-five years for the Lower House.
  • The element of dignity and prestige was added to the Council of State House by making the Vice-President of India ex-officio Chairman of the Rajya Sabha who presides over its sittings.
  • Article 80 of the Constitution lays down the maximum strength of Rajya Sabha as 250, out of which 12 members are nominated by the President and 238 are representatives of the States and of the two Union Territories.
  • The present strength of Rajya Sabha, however, is 245, out of which 233 are representatives of the States and Union territories of Delhi and Puducherry and 12 are nominated by the President.
  • The members nominated by the President are persons having special knowledge or practical experience in respect of such matters as literature, science, art and social service.
  • The Fourth Schedule to the Constitution provides for allocation of seats to the States and Union Territories in Rajya Sabha.
  • The allocation of seats is made on the basis of the population of each State.
  • Consequent on the reorganization of States and formation of new States, the number of elected seats in the Rajya Sabha allotted to States and Union Territories has changed from time to time since 1952.

​Censure Motion:

​Censure Motion

• This motion can be moved only in the Lok Sabha and by the Opposition of the House.

• It can be moved against the Council of Ministers or an individual Minister or a group of Ministers for their failure to act or not to act or for their policy and may express regret, indignation or surprise of the House at the failure of the Minister or Ministers.

• The Motion should be specific and self-explanatory so as to record the reasons for the censure, precisely and briefly.

• No leave of the House is required to move a Censure Motion.

• If the Censure Motion is passed, the Council of Ministers is bound to seek the confidence of the Lok Sabha as early as possible.

• This motion is mentioned under the Rule 184 of the Rules and Procedures of the Lok Sabha.