The Union cabinet’s approval of a bill to replace the ordinance on the creation of an authority for transfer and posting of Group-A officers in Delhi has brought to light the contentious practice of promulgating ordinances to circumvent critical judicial pronouncements. This power has long been exercised by the executive arm of the government during Parliament’s recess and has been a recurrent theme since India’s Independence, with governments holding diverse ideologies resorting to this tool.
In a recent instance, the NDA government issued the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which established an authority for the transfer and posting of Group-A officers, effectively removing the legislative control from the Delhi government. The ordinance was introduced following the Supreme Court’s decision to grant the elected government control over services in Delhi, except for police, public order, and land.
Prior to this, the Centre introduced two ordinances that allowed for the extension of the tenure of Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) Directors for up to five years. This move came after the apex court’s ruling in 2021, emphasizing that extensions for officers reaching superannuation age should be exceptional and rare.
In addition, the Union government brought the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, which prescribed the tenure, retirement age, and service conditions of tribunal members, reducing the tenure of chairpersons and members to four years instead of the previously mandated five years by the apex court.
Historically, the Centre has used ordinances as a means to overturn Supreme Court judgments. For instance, in 1951, an amendment bill was passed to nullify the effects of the Supreme Court’s judgment in the Champakam Dorairajan case, concerning the quota system in college admissions in Madras based on the “Communal Government Order” issued by the Madras Presidency.
Similarly, a constitutional amendment was enacted to nullify the judgment arising from the Indira Gandhi Vs Raj Narain case, in which the Allahabad High Court had set aside Gandhi’s election. The 39th constitutional amendment was passed retrospectively, adding Article 392A to the Constitution, stating that the elections of the President, Vice President, Prime Minister, and Lok Sabha Speaker cannot be challenged in any court and can only be contested before a parliamentary committee.
The process of promulgating an ordinance is initiated by the President based on the recommendation of the Union Cabinet when Parliament is not in session. However, it is mandatory for Parliament to replace the ordinance with a law within six weeks of the commencement of the next session. The exercise of this power raises questions about the balance of power between the executive and judicial branches of the Indian government.
