Termination of Ordinances

The termination of ordinances refers to the process by which ordinances issued by the President of India or the Governor of a State cease to have legal effect. An ordinance is a temporary law promulgated by the executive when the legislature is not in session, and it must eventually be replaced, approved, or allowed to lapse according to constitutional provisions. The system ensures that the executive’s power to legislate remains an emergency mechanism and not a substitute for parliamentary or legislative authority.

Concept and Constitutional Basis

The power to promulgate ordinances in India is conferred by Article 123 of the Constitution upon the President of India and by Article 213 upon the Governor of a State. These provisions enable the executive to enact laws when immediate legislative action is necessary and the respective legislature is not in session.
However, since this power temporarily overrides the normal law-making process, the Constitution limits its operation strictly in time and scope. The termination or expiry of an ordinance ensures that democratic control through the legislature is restored.

Duration and Operation of Ordinances

An ordinance comes into force immediately upon promulgation by the President or Governor, unless it specifies a later date. It has the same force and effect as an Act of Parliament or State Legislature but remains temporary in character.
According to the Constitution:

• An ordinance must be laid before the legislature when it reassembles.
• It will cease to operate six weeks after reassembly, unless it is approved by both Houses (or the Legislative Assembly in a State with a unicameral legislature).
• It may also cease earlier if disapproved by a resolution of the legislature or withdrawn by the President or Governor before that period.

Thus, an ordinance is a transient legislative instrument, valid only for a limited duration and always subject to legislative approval.

Modes of Termination

An ordinance may terminate through one of the following constitutional mechanisms:

1. Automatic Expiry after Six Weeks of Reassembly: When Parliament or a State Legislature reconvenes after recess, an ordinance automatically ceases to operate six weeks after the date of reassembly, unless both Houses approve it through resolutions.
   • If only one House passes it and the other does not within six weeks, the ordinance lapses.
   • If the legislature disapproves it, it ceases immediately.
2. Disapproval by Legislature: If Parliament or the State Legislature passes a resolution disapproving the ordinance, it ceases to operate from the date of such disapproval. This reflects legislative supremacy over executive legislation.
3. Withdrawal by the Executive: The President or Governor may withdraw the ordinance at any time before its expiry. Such withdrawal operates prospectively, and any rights or liabilities created before withdrawal remain valid.
4. Replacement by an Act of Legislature: If the legislature passes a bill replacing the ordinance, the ordinance ceases upon enactment of the new law. This transition ensures continuity of legal effect.
5. Dissolution of the House (in case of Parliament): If the Lok Sabha is dissolved before approving an ordinance, it can still continue until six weeks after the reassembly of the new Lok Sabha. The six-week period is counted from the first sitting of the new House.

Constitutional Safeguards

To prevent misuse of ordinance powers, the Constitution provides multiple checks:

• The requirement that the legislature must reassemble periodically, ensuring ordinances cannot remain in force indefinitely.
• The mandatory presentation of ordinances before the legislature for approval or disapproval.
• The six-week limitation period, ensuring temporary nature.
• The possibility of judicial review, ensuring ordinances comply with constitutional limits and fundamental rights.

Judicial Interpretation

The Supreme Court of India has examined the ordinance-making power and its termination in several landmark cases:

• R.C. Cooper v. Union of India (1970): The Court held that an ordinance is subject to the same constitutional limitations as an Act of Parliament.
• A.K. Roy v. Union of India (1982): The Court ruled that the President’s satisfaction in promulgating an ordinance is justiciable if mala fides or extraneous considerations are proved.
• D.C. Wadhwa v. State of Bihar (1987): This landmark case condemned the practice of re-promulgation of ordinances without placing them before the legislature. The Court held that re-promulgation is a fraud on the Constitution, as it subverts the legislative process.
• Krishna Kumar Singh v. State of Bihar (2017): A seven-judge Constitution Bench held that re-promulgation of ordinances is unconstitutional and violates the principle of legislative supremacy. The Court further clarified that when an ordinance ceases to operate, its effects also cease, except for acts done or rights accrued during its validity.

Effect of Termination

When an ordinance terminates or ceases to operate, its legal consequences depend on the circumstances:

1. Cessation of Operation: The ordinance becomes void from the date it ceases to operate. It no longer has legal force for future actions.
2. Preservation of Past Acts: Actions, rights, and liabilities arising under the ordinance while it was in force remain valid under the doctrine of de facto validity.
3. Repeal or Replacement: If an ordinance is replaced by a parliamentary or state law, the new law may retrospectively validate or repeal the effects of the ordinance.
4. Judicial Challenge: Ordinances that continue without legislative approval, or are re-promulgated repeatedly, can be struck down as unconstitutional.

Practical Examples

• The Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969 was promulgated by the President to nationalise banks when Parliament was not in session. It was later replaced by an Act of Parliament.
• The Bihar Ordinance Re-promulgation Case (D.C. Wadhwa) exposed the long-standing misuse of ordinances, where the State of Bihar kept re-promulgating ordinances over several years without legislative approval.

These examples illustrate how the termination process ensures accountability and limits the duration of executive law-making.

Distinction between Lapse and Repeal

• Lapse: Occurs automatically when the time limit expires or the legislature disapproves the ordinance.
• Repeal: Occurs when a subsequent Act of Parliament or the executive formally withdraws the ordinance.

While repeal involves conscious legislative or executive action, lapse occurs by operation of constitutional law.

Significance of Termination

The termination of ordinances is vital to the democratic and constitutional order for the following reasons:

• It reaffirms legislative supremacy, ensuring that law-making remains primarily within the legislature’s domain.
• It prevents abuse of emergency legislative power by the executive.
• It ensures accountability of the government to the legislature.
• It preserves the doctrine of separation of powers and checks arbitrary exercise of authority.