LAW & SOCIETY MAY 19, 2018 vol lIiI no 20 EPW Economic & Political Weekly 10 Alok Prasanna Kumar (alok.prasanna@ vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru. The Ordinance Route Exception or Rule? Alok Prasanna Kumar The deadlock in Parliament has resulted in the increasing tendency of the union government to promulgate legislation through ordinances when Parliament is not in session. While there are no substantive restrictions on the President’s power to promulgate ordinances, given the inherently temporary nature of ordinances, the exercise of this power must be limited keeping in mind the concerns of rule of law. F ollowing the washout of the second half of the budget session, three ordinances have recently been pro- mulgated by the President. First was the Criminal Law (Amendment) Ordinance, 2018 which, among other things, amended the Indian Penal Code ( IPC), 1860, allo- wing the imposition of the death penalty on those convicted of sexual assault of a minor girl below the age of 12 years. Alongside, this ordinance also imposed a mandatory minimum sentence of 20 years in the case of such sexual assault. This was followed by the Fugitive Eco- nomic Offenders Ordinance, 2018, which allowed the seizure of assets of those accused of certain economic offences, if they fled the country prior to trial. This ordinance—which was pending as a bill for a while—is meant to dissuade eco- nomic offenders from following the path of Vijay Mallya and Nirav Modi (among others), of seeking refuge in other coun- tries to avoid facing trial in India. Most recently, amendments to the Com- mercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (henceforth Commer- cial Courts Act) were made through an ordinance. These amendments allow for the setting up of commercial courts to hear disputes with a value of as little as `3 lakh (as opposed to the earlier limit of `1 crore), and require parties to have attempted mediation prior to the institu- tion of a suit in a commercial dispute. The wisdom of the three ordinances has been questioned. The amendments to the IPC seem to be a knee-jerk response to the protests and criticism over the handling of the Kathua rape incident (Agnes 2018), and their potential efficacy as a deter- rent against the sexual assault of minors remains unclear (Bhandari 2018). The Fugitive Economic Offenders Ordinance, too, has come under fire for being a case of “too little too late” (Sachdev 2018), while at the same time being so overbroad as to potentially impinge on the legitimate conduct of business (Sundaresan 2018). The Commercial Courts amendment ordinance, seemingly done to improve India’s ranking in the World Bank’s Ease of Doing Business Report for the next year, may not even achieve this, and will only create confusion over the resolution of commercial disputes in courts. This column, however, is more con- cerned with the necessity of such ordi- nances. In a parliamentary democracy such as India, the ordinance promulga- tion power is supposed to be used as an exception and not as a matter of course. The constitutional scheme exists to ensure accountability of the political executive to the elected legislature. If, however, an ordinance becomes the dominant form of lawmaking and is used on a whim by the President or the governor (acting on the advice of the government), this has impli- cations for the future of parliamentary democracy. Further, the very nature of the ordinance might mean that a frequent resort to it is only self-defeating. Constitutional Scheme History tells us that during the indepen- dence movement, the use of ordinances under the Government of India Act, 1935 by the viceroy was, per se, seen as proble- matic by the leaders of the independence movement. Yet, the very same leaders, when they took charge under the Consti- tution, resorted to the same measure frequently (Dam 2010). Two more or less identical provisions deal with the ordinance-making power of the President and the governor of a state respectively: Articles 123 and 213 of the Constitution. These state that an ordinance may be promulgated to meet a certain cir- cumstance, but must be laid before the legislature in question, and will expire within six weeks of the legislature being convened. An ordinance is thus, by defini- tion, limited in time, and can cease to have effect even earlier, if the legislature passes a resolution disapproving the ordinance. These provisions, though, did not fully answer what happens to an ordinance if