Theme 3 & 4

Theme 3 & 4

PAST YEAR PAPER ANALYSIS (2013-2020)Atish Mathur: MATHUR10

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S.no. Theme

1 Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments,Significant Provisions and BasicStructure

2 Functions and Responsibilities of the Union and the States, Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local Levels and Challenges Therein.

3 Separation of Powers between various organs, Dispute Redressal Mechanisms andInstitutions.

4 Comparison of the Indian Constitutional Scheme with that of Other Countries.

5 Parliament and State Legislatures—Structure,Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

6 Structure,Organization and Functioning of the Executive and the Judiciary—Ministries and Departments of theGovernment

7 Salient Features of the Representation of People’s Act.

8 Appointment to various Constitutional Posts, Powers,Functions and Responsibilities ofvarious Constitutional Bodies.

9 Statutory,Regulatory and various Quasi-judicial Bodies.

Year Ques Context

2015 Resorting to ordinances has always raised concern on violation of the spirit of separation of power doctrine. While noting the rationales justifying the power to promulgate, analyse whether the decision of the Supreme Court on the issue have further facilitated to resorting to this power. Should the power to promulgate the ordinances be repealed? [12.5/200]

SC Judgement on repromulgation ofland ordinances

2018 Indian and USA are two large democracies. Examine the basic tenets on which the two political systems are based. [15/250]

India and US President Election

2019 Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain [10/150]

Theory

2019 What can France learn from the Indian Constitution’s approach to secularism?[10/150]

2020 The judicial systems in India and UK seem to be converging as well as diverging in the recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. [10/150]

▪ Separation of Powers

▪ Checks and Balances

▪ Doctrines

▪ Ordinances

▪ Comparative Constitutional Chart

• Evolution of SOP

• How is SOP implemented in India?

• Comparison with UK and USA

• Alternate Dispute Resolution-

legislations, Lok Adalats, advantages

and disadvantages

• Ordinances vs Regular legislation

▪ The history of the origin of the doctrine is traceable to Aristotle

▪ In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke respectively had expounded the doctrine of separation of powers

▪ But it was Montesquieu who for the first time gave it a systematic and scientific formulation in his book 'Esprit des Lois (The Spirit of the laws) published in the year 1748.

▪ According to this theory, powers are of three kinds: Legislative, executive and judicial and that each of these powers should be vested in a separate and distinct organ, for if all these powers, or any two of them, are united in the same organ or individual, there can be no liberty.

▪ Montesquieu described division of political powers among an executive, a legislature, and a judiciary.

▪ He based this model on the British Constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law.

▪ The Constitution recognizes of the three-fold functional division of governmental powers.

▪ Article 50 expressly requires the State to apply the principle of separation of the judiciary from the executive as a sound principle of Government.

▪ Two – dimensional

SEPARATION OF POWERS

▪ Government of India Act,. 1919: The Act, provided a dual form of government (a "dyarchy") for the majorprovinces. In each such province, control of some areas of government, the "transferred list", were given to aGovernment of ministers answerable to the Provincial Council. The 'transferred list' included Agriculture,supervision of local government, Health and Education. The Provincial Councils were enlarged.

▪ Maston Award: Under the provision of the Act, of 1919,the land-revenue collected in the Provinces was whollyassigned to the provinces. This resulted in the substantial flow of resources to the agricultural provinces andthe industrial provinces were deprived of this benefit. Even the Central Government itself suffered a big loss onaccount of the transfer of the proceeds from land revenues to the provinces. In order to solve this problem thecentral Government decided that the provinces should contributes for balancing the central budget. Thesecontributions were fixed by what is known as Master Award.

▪ Government of India Act, 1935: That Act, introduced a novel system of government known as provincial"dyarchy", i.e., certain areas of government (such as education) were placed in the hands of ministersresponsible to the provincial even for those areas over which they had gained nominal control, the "pursestrings" were still in the hands of British official.


BASIC CHANGE: CONSTITUTIONAL PROVISION▪ Judiciary is independent in its field and there can be no interference with its judicial functions

either by the executive or the legislature.

▪ Constitution restricts the discussion of the conduct of any judge in the Parliament.

▪ The High Courts and the Supreme Court has been given the powers of judicial review and they candeclare any law passed by parliament as unconstitutional.

▪ The judges of the Supreme Court are appointed by the Pres in consultation with the CJI andJudges of the Supreme Court.

▪ The Supreme Court has powers to make Rules for efficient conduction of business.

▪ Powers, Privileges and Immunities to the VIPs, Immunity from judicial scrutiny into theproceedings of the house, etc.

▪ The President and the Governor enjoy immunity from civil and criminal liabilities.


SCRUTINY▪ The executive is a part of the legislature.

▪ It is responsible to the legislature for its actions and also it derives its authority from legislature.

▪ India, since it is a parliamentary form of government, therefore it is based upon intimate contact andclose co-ordination among the legislative and executive wings.

▪ However, the executive powers vests in the President but, in reality he/she is only a formal head andthat, the Real head is the Prime minister along with COM.

▪ The reading of Art. 74(1) makes it clear that the executive head must act in accordance with the aidand advice given by the cabinet.

▪ Pres :Ordinance, Emergency, Public Service Matters regulations etc.

▪ Parliament exercises judicial functions too. It can decide the question of breach of its privilege andPresident’s impeachment.

▪ Judiciary, in India, too can be seen exercising administrative functions when it supervises all thesubordinate courts below. It has legislative powers too : reflected in the formulation of rules regulatingtheir own procedures for conduct and disposal of cases.


▪ So, it's quite evident from the Constitutional provisions themselves that India, being a

parliamentary democracy, does not follow an absolute separation and is, rather based upon

fusion of powers, where a close co-ordination amongst the principal organs is unavoidable

and the Constitutional scheme itself mentions it.

▪ The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ of the

government is required to perform all the three types of functions. Also, each organ is, in

some form or the interdependent on the other organ which checks and balances it.


JUDICIAL EVOLUTION

▪ In the Re Delhi Laws Act Case (1951) :SOP is evident in the Constitution itself even if SOP is not part and parcel of our Constitution

▪ Kesavananda Bharti case (1973) :doctrine of separation of powers was a part of the “basic structure” of our Constitution

▪ Indira Nehru Gandhi v. Raj Narain (1975) : When CA declaring SC does not have the power over PM election was struck down, the primary reasoning was that removal of PM is a judicial matter and the Parliament did not have a right to restrict this in the first place, thereby reinforcing SOP.

▪ Context of coalition politics at the center and in states.

▪ This can be seen in the instances such as those that occurred

in some states in the State elections of 2005 and , particularly

in Jharkhand, Goa and Bihar, where no party or coalition of

parties had a clear majority. The situation was further

complicated by the fact that neither the Governors of these

states (who had the final powers to appoint a government)

nor the presiding officers of the legislatures (who had the

powers to conduct the proceedings of the House where the

majority claimed by the new government was to be tested)

were considered to be impartial in their decisions.

▪ Similar issues in Karnataka (2018) and Maharashtra (2019)

POLITICAL EVOLUTION


COMPARATIVE ANALYSIS

▪ The U.S.A. form of separation of powers is associated with a system of checks and balances.

▪ Australia, Germany, Costa Rica, China, Russia also follows the same principle as US

▪ Countries with little separation of powers include New Zealand and Canada.

▪ In Italy the powers are completely separated

▪ Under the British Westminster system, based on parliamentary sovereignty and responsible

government, Parliament (consisting of the Sovereign (King-in Parliament),House of Lords and House of

Commons - was the supreme lawmaking authority.



▪ In the UK the separation of powers is informal, but the three branches are identifiable.

▪ The Queen appoints government ministers (the executive)

▪ The Queen appoints judges, and justice is dispensed in the name of the Queen.

▪ The Queen formally summons Parliament (the legislature) and must give the Royal Assent to a Bill to make it into Law.

▪ Since 2009 a new UK Supreme Court has taken over its judicial functions, closing the doors on one of the most influential legal institutions in the world, and a major chapter in the history of the UK legal system.

▪ It is a paradox that the theory of Montesquieu was inspired by the politicalsystem as it obtained in England in the 18th century; the concentration ofpowers in an absolute monarch had been replaced by legislative functionbeing exercised by Parliament and judicial powers being exercised by theCourts.

▪ In the Constitutional Reform Act, 2005,the Government and Parliament reformed some of the areas where, in the UK, the "powers" had been least separated.


DOCTRINES

▪ clause (2) of article 245 provides that parliament may make even such law, which may be extra-territorial

in nature. It means whenever parliament enact a law which has its applicability outside its boundary or

territory or even itis related to some foreign nationals, such law can’t be declared invalid on the ground of

being extra-territorial in nature.

▪ But the question arises as regarding the fact of law enacted by the legislatures of the states, which has its

applicability outside the boundary of that particular state.

▪ To avoid this problem courts have developed doctrine of extra - territorial nexus.


DOCTRINE OF EXTRA-TERRITORIAL NEXUS

▪ Based on the maxim that what can’t be done directly can’t also be done indirectly.

▪ This doctrine comes in the play when a legislature tries to cross its constitutional limit.

▪ If it is not competent to enact particular law but it still tries to those very objective by applying some indirect those very objective by applying some indirect method or by enacting that very law clothed in some other form.

▪ State of Bihar v/s. Kameshwar (1952) :

▪ In this case a state law dealing with the abolition of the land lord system, provided for the payment of a compensation on the basis of income occurring to the land lord prior to the date of acquisition was to be vested in the state, and half of these arrears were to be given to the land lord as compensation.

▪ The provision was held to be colorable legislation and hence void under entry 42,list - III, as the taking of the whole and returning half means nothing more or less than taking half without any return and this is naked confiscation no matter in whatever specious form it may be clothed or disguised.


Minerva Mills Ltd. And others, v/s Union of India and others (1980)

▪ Supreme court quashed the newly introduced clause (4) and (5) of article 368 of the constitution.The court observed that clause (5) confers upon the parliament a vast and undefined powers toamend the constitution even so as to distort it out of recognition.

▪ Since the constitution had conferred a limited amending powers on the parliament, theparliament can not under the exercise of that limited powers in large that very powers into anabsolute powers.

▪ The court also observed that newly introduce clause (4) of article 368 must suffer the same fateas clause (5) because the two clauses are interlinked.

▪ Clause (5) purports to remove all the limitations on the amending powers while clause (4)deprives the courts of their powers to call in question any amendment of the constitution.


DOCTRINE OF PITH AND SUBSTANCE

▪ Structure of Indian constitution provides for a rigid division of powers between the center and states.

▪ There are grey areas where it is very difficult to decide, whether a particular subject matte or enactment belongs to this entry or that entry.

▪ For such situations judiciary has developed doctrine of 'pith and substance'. In India this doctrine has been taken from Canada and now ‘doctrine 'of pith and substance's well established is India.

▪ If it is alleged that particular piece of legislation infringe the constitutional scheme or it encroaches upon the powers of some other legislative body, the court will apply the rule of 'pith and, substance 'to see the real intent or objective of that particular piece of legislation.

▪ If court on such enquiry finds objects of such legislation or what have been tried to achieve through such legislation is within the legislature jurisdiction of that legislative and it incidentally encroach upon the other list then such law is considered perfectly valid


▪ Prafulla Kumar Mukherjee v/s Bank of Commerce Ltd. Khulna.

▪ The validity of the Bengal money lender’s Act 1946 was questioned.

▪ The Bengal money lender’s Act, 1946 was enacted by the Bengal state legislature under entry 27 of list II

money lending and money lender, which an exclusive provincial subject under the Government of India Act,

1935 objective of the money lenders Act was to put a limit on the amount and rate of interest recoverable by

a money-lender on any loan.

▪ The Act was challenged as ultra wives on the ground that it also dealt with “Cheques bills of exchange,

promissory notes and other like instruments”, which was an exclusive central subject under entry 28 of list I,

of Government of India, Act, 1935, privy council applied the doctrine of 'pith and substance’ and held that

since the subject matter of the legislation is money lending and not the promissory note and it only-

incidentally touch upon the promissory note, therefore Bengal money lender’s Act is perfectly valid.


WAY FORWARD▪ Some conventions need to be followed by both central and state governments such as there must be effective

consultation by center government with state government before legislating in the concurrent field. It is suggested that Interstate-Council should always be consulted before Bill in the concurrent field is introduced in Parliament, as this forum would be best forum for this purpose

▪ It is suggested that the residuary powers of legislation in regard to taxation matters should remain exclusively in the competence of parliament while the residuary field other than that of taxation should be placed on the concurrent list.

▪ The enforcement of Union laws, particularly those relating to the concurrent sphere, is secured through the machinery of the States.

▪ To ensure uniformity on the basic issue of national policy, with respect to the subject of a proposed legislation, consultations may be carried out with the State governments individually and collectively at the forum of the proposed Inter-Governmental council.

▪ Certain provisions of our federalism based on the govt. of India Act, 1935 with the changing circumstances require scrutiny. Subject matter of the state list may be increased.

▪ It must be made obligatory for center to consult states before enacting laws on subjects of concurrent list it did not feel desirable for complete centralization of powers.


▪ Cooperative Federalism is the answer to today’s complex problem. Hence to make cooperative

federalism successful and to check the unnecessary growth of powers to the Centre.

▪ Our constitution does not prescribe duration of executive but it prescribe duration of legislature.

They should complete their periods through governments may be changed during the period of

legislature.

▪ For Independence of judiciary, booth smooth functioning of a judge independent of vicious circle

and also independents for a judge without fear and favors of executive there must be rational and

uniform policy of transfer of judges is to be formulated by a parliamentary status. The present

policy of pick and shoot is against the spirit of the constitution and independent of the judiciary.


Similarities Divergences

India • Instrument of writing petitions • Upholding rule of law• Judicial independence • Judiciary of both nations can review

the acts of administration and executives

• Scope of Judicial Review is wider• Special leave petition of India has

no parallel in UK• Judges are appointed by the

collegial system

UK • Judiciary cannot review acts made by the Parliament

• There exists a Judicial Appointment Commission

Recent developments from current affairs- The Sedition Act is no longer valid in the UK, while it is often used in India. Also, the contempt of court proceedings are rare in UK, while in India it has recently been used in the Prashant Bhushan case.


▪ Conflict management via a mechanism of dispute resolution that is alternative to traditional adversariallitigation.

▪ Dispute resolution in cost-effective manner and with increased efficacy (promotes working together co-operatively, reducing hostility and reaching solution optimum for both parties.)

▪ Generally, neutral third party helps parties to communicate, discuss differences and resolve dispute.

▪ The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, TheArbitration and Conciliation Act was enacted in 1996 and was significantly amended in2019.

ALTERNATE DISPUTE RESOLUTION

“It is the spirit and not the form of law that keeps the justice alive.”

~ LJ Earl Warren

▪ Not just an alternative means, but an additional method that is utilized by courts to ease the

burden of pending cases.(The Court also orders mediation between parties in some cases so that

the burden of the courts may be relieved and the parties may come to a compromise amongst

themselves under Section 89 of the Civil Procedure Code)

▪ Provides scientifically developed techniques – reduces burden on the judiciary.

▪ Urgent need to clear mounting backlog of cases.(speedier process as formal court proceedings

are avoided.)

▪ Make litigation affordable to the ordinary people. (less expensive than going to court; saves stress

of court appearances for common man.)



LOK ADALAT

▪ A non-adversarial system based on Gandhian principles –known as People’s Courts;

▪ Assumed statutory recognition under Legal Services Authority Act, 1987.


ISSUES▪ Though it is true that “Justice delayed is justice denied”, it is also true that “justice hurried is justice buried.”

▪ System of Lok Adalats is based on compromise and settlement – if parties do not arrive at consensus:

▪ Case is returned to the court of law;

▪ Unnecessary delays in the dispensation of justice.

▪ Members other than Chairman are persons without a legal background, even in Permanent Lok Adalat.

▪ Judges are pressured to quickly dispose of the cases for political gains:

▪ Limited consideration to the parties 'rights and needs.

▪ Provisions of Code of Civil Procedure and the Indian Evidence Act not strictly applicable:

▪ Decisions made only if element of settlement exists.

▪ Decisions will be in a summary manner.

▪ If parties do not settle, Permanent Lok Adalat shall decide the dispute.


▪ Legal Awareness

▪ Accessible legal literacy/ legal aid programs for the marginalized.

▪ Awareness camp sat grassroot level.

▪ Mass media coverage to encourage public approach to Lok Adalats.

▪ Expanded Jurisdiction

▪ Inclusion of business disputes or conflicts where the public at large are involved.

▪ More Lawyers

▪ Improved quality of legal aid.


▪ Incentivizing lawyers to provide effective legal

assistance to the needy, e.g. Increasing

renumerations.

▪ Cultural & Structural Reforms

▪ Balance between formal and informal forum to

encourage public.

▪ Mobilization of resources - staff, funding and facilities

– enhance structural soundness of Lok Adalats.

▪ Including specialists of concerned disputes.

▪ Free legal training to social workers to prevent

exploitation of poor by lawyers.

▪ Encouraging referral to Lok Adalats to increase

awareness and reduce prejudice against it.

▪ Section 89 of the Civil Procedure Code, 1908 - if it appears to court there exist elements ofsettlement outside the court then court formulate the terms of the possible settlement and referthe same for:▪ Arbitration,

▪ Conciliation,

▪ Mediation or Lok Adalat.

▪ Arbitration and Conciliation Act, 1996 - modernization of The Arbitration Act, 1940, which dealtwith only domestic arbitration.

▪ The Legal Services Authority Act, 1987 - passed in 1987 to encourage out-of-court settlements;

▪ To provide free and competent legal services to the weaker sections of the society to ensure thatopportunities for securing justice are not denied to any citizen.


ADVANTAGES

▪ Less time consuming: people resolve their dispute in shorter periods as compared to traditionallitigation in courts, which may take years

▪ Cost effective:

✓It saves lot of money if one undergoes in litigation process.

▪ Informal:

✓It is free from technicalities of courts resulting in fewer procedural delays; people are free toexpress themselves without any fear or intimidation.

▪ Efficient:

✓There are always chances of restoring relationship back as parties discuss their issuestogether on the same platform.

▪ Preserves the best interests of parties and prevents further conflict and souring of relationships.

▪ Specialized expertise can be made available on the tribunal in order to facilitate the mostappropriate outcome.


DISADVANTAGES

▪ Several issues like admitted liability, divorce, granting of probates etc. cannot be referred to arbitration.

▪ Can only be adopted when there is no statutory bar and further if parties mutually agree.

▪ Quality of ADR depends on the arbitrator/mediator it;

▪ Depending on arbitrator, it sometimes proves to be more costly than court litigation (Arbitration andConciliation Act in this regard provides for the Court's intervention at the appropriate situation so thatADR is not misused resulting in miscarriage of justice.

▪ Further, due to parties often appealing Arbitral Awards before Courts, Commercial entities arebeginning to view Arbitration as a wasted exercise that is costly and time consuming)

▪ Hurdles in the effective implementation of ADR are many which include the following:

▪ Lack of appropriate arbitrators (very often, retired judges are appointed as arbitrators, which results inarbitrators assuming the adversarial form of dispute resolution which they are comfortable with. Thisis viewed unfavorably, especially since the arbitrators often lack the expertise to resolve complexfactual disputes in international commercial arbitration).

▪ Lack of infrastructural facilities.

▪ Lack of awareness and legal literacy


WAY FORWARD▪ There is a lack of awareness about the availability of ADR mechanisms.

▪ The National and State Legal Services Authorities should disseminate more information regardingthese, so they become the first option explored by potential litigants.

▪ Requisite infrastructure should be provided, and institutional framework put to place to achievegoals of adoption of ADR mechanisms.

▪ ADR centers should be created for settling disputes out-of-court.

▪ The award should be made binding on the parties and no appeal to the court should be allowedunless itis arrived at fraudulently or if it against public policy (will make sure that ADR is bindingand prevent delay of implementation of the award.)

▪ Several online ADR platforms have been launched such as SAMA and ADR-ODR International whichfacilitate dispute resolution online. These platforms must be encouraged and given officialrecognition, so that Courts may take their assistance in referring cases to ADR.


Ordinances in the News

▪ Since the imposition of the nation-wide lockdown on account of the COVID-19 pandemic, the President has promulgated 11 ordinances, of which 7 related to the pandemic and the health sector, 3 were the farm ordinances that have since been enacted into laws after the Parliament came back into session and 1 related to amendment of the Banking Regulation Act, which too has been enacted into a law. The rate of promulgating ordinances has seen a sharp rise in the last 6 years with many ordinances being re-promulgated after they have lapsed

▪ An ordinance is a law that is promulgated by the President of India, on the recommendation of the Union Cabinet, when the Parliament is not in session.

▪ Similarly, the Governor of a state can also initiate ordinances when a Legislative Assembly is not in session when it is a unicameral legislature and when Legislative Assembly along with Legislative Council both are not in session when itis a bicameral legislature.

▪ Article 123 of the Constitution grants the President the power to promulgate Ordinances.

▪ This technique of issuing an ordinance has been devised with a view to enabling the executive to meet any unforeseen or urgent situation arising in the country when Parliament is not in session, and which it cannot deal with under the ordinary law.

ORDINANCES

INTRODUCTION

ORDINANCE MAKING POWER OF THE EXECUTIVE

ORDINANCES

COMPARISON BETWEEN REGULAR LEGISLATION AND AN ORDINANCE

▪ An Ordinance made by the President is a legislative act and not an executive act. Hence, itis a ‘law 'withinthe meaning of Constitution. This power of the President is Co-extensive with the legislative power of theParliament itself. An Ordinance, therefore, cannot be promulgated with respect to a subject which isbeyond the legislative competence of Parliament.

▪ While the initiative for both an Ordinance and regular legislation comes from the Executive, the former ispassed on a current basis and in case of the latter, the legislative sanction is postfacto.

▪ Unlike the passing of a regular bill, there is no scope for detailed discussion and arriving at consensus atthe time of promulgation of Ordinances.

▪ Like money bills and finance bills, there can be Ordinance on fiscal matters as well.

▪ An Ordinance is also subject to judicial review on grounds of unconstitutionality. Courts have held thatthe motives of promulgating an Ordinance cannot be questioned in a Court of law, much like the act ofthe Legislature in passing a law. A Court may only declare an Ordinance invalid in case it transgresses theconstitutional limits of the power

ORDINANCES

ORDINANCES AN ABUSE OF PARLIAMENTARY DEMOCRACY?

▪ The Ordinance making power of the President is in reality a power vested with the Union Cabinet or the Council of Ministers. Moreover, the satisfaction of the President regarding the existence of circumstances that render it necessary for him to takeimmediate action is a subjective matter which cannot be probed or questioned in a court of law; and the precise nature of the action that he may decide to take in such circumstances is also left to his discretion and cannot be challenged. This is similar to the principle that the judiciary cannot examine the reason or motivation to enact a legislation by the Legislature, but merely comment on its constitutional validity.

▪ The increase in the number of ordinances promulgated by the Government has sparked the debate on the use of ordinances to undermine the democratic process of legislating.

▪ The Courts have, in various decisions clarified the power of making Ordinances. In D.C. Wadhwa & others v/s State of Bihar (1986),the Supreme Court made following observations:

▪ The power to promulgate an Ordinance is an emergency power which may be used where immediate action may be necessary at a time when the legislature is not in session. It is contrary to all democratic norms that the Executive should have the power to make a law; hence such emergency power must, of necessity, be limited in point of time.

▪ A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the authority to do an act, to avoid that limitation by resorting to a subterfuge would be a fraud on the constitutional provision.

ORDINANCES

▪ While the satisfaction of the President as to the existence of circumstances necessitating immediate action by issuing an Ordinance cannot be examined by Court, it is competent for the Court to inquire whether he has exceeded the limits imposed by the Constitution. He would be usurping the function of the Legislature if he, in disregard of the constitutional limitations,goes on re-promulgating the same Ordinance successively, for years together, without bringing it before the legislature.

▪ Though, in general the motive behind issuing an Ordinance cannot be questioned, the Court cannot allow it to be ‘perverted for political ends’.

▪ The Court in this case also made it abundantly clear that repeated re-promulgation of ordinances was unconstitutional.

▪ An ordinance is not permanent. It is a stop gap measure for matters that need urgent attention when the Legislature is not insession. However, the motivation to use the power of promulgating Ordinances vested in the President and the Governors under Articles 123 and 213 of the Constitution is generally a result of one of the following three reasons:

▪ Reluctance to face the legislature on particular issues.

▪ Fear of defeat in the Upper House where the government may lack the required numbers.

▪ The need to overcome standoff in the legislature caused by repeated and willful disruption by a section of the Opposition.

▪ In Krishna Kumar Singh v/s State of Bihar (2017), a seven-judge bench of the Supreme Court stated that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution, noting that a 1989 ordinance by which the State government took over 429 Sanskrit schools in Bihar was promulgated several times until 1992, but not once tabled in the State Assembly

ORDINANCES

IMPLICATIONS

▪ The judgement widens the scope of judicial review of ordinances.

▪ The court can go into whether the President or Governor had any material to arrive at the satisfaction that an ordinance was necessary and to examine whether there was any tilted motive.

▪ Maintenance of constitutional decorum and legislative control over law making.

▪ Use of an ordinance by the President/Union Cabinet need not always be a cynical move to privilege political expediency over parliamentary accountability.

▪ The contention that ordinances are to be used only in times of exigent circumstances must also be balanced by the view that disruption of parliament as a political tactic plays a significant role in delaying urgent legislation. Moreover, a disruptive House may sometimes constitute a compelling circumstance in itself.

ORDINANCES

Epidemic Diseases (Amendment) Ordinance, 2020: The key amendments of the colonial legislation seek toprotect its healthcare personnel's, clinics and other facilities. It seeks to cover the limitations and gaps in ourexisting state laws that usually do not cover occupational harassment at home and workplace.

Features:

It is contemplated that the Ordinance will positively impact the morale and reinstate trust and confidence backinto our healthcare community.

• It makes any attack upon them a cognizable and a non-bailable offence.

• It solidifies the definition of what constitutes as violence i.e., harassment, physical injury and damage to

property, as well as who is covered under the ambit of healthcare personnel.

• The law also envisions time bound investigations, in addition to compensation for injury or damage to

property, to almost twice the fair market value.

ORDINANCES

THANK YOU

Documents

Theme 3 & 4