Report No. 249

Chapter 3

Permanent Ordinances Recommended for Repeal

3.1 The PC Jain Commission Report recommended repeal of 17 permanent war-time ordinances in its Appendix A-4. These ordinances were promulgated under Section 72 of the Ninth Schedule of the Government of India Act, 1935 (the Ninth Schedule allowed for the continuation of certain sections of the Government of India Act, 1919).

The section empowered the Governor-General-in-Council to promulgate ordinances in cases of emergency. Ordinarily, Section 72 provided that ordinances would be limited to a duration of six months. However, the operation of the six month clause was suspended by Section 1(3) of the India and Burma Emergency Provisions Act, 1940, and the 17 war-time ordinances were promulgated when the 1940 Act was in force.

3.2 These ordinances were later adapted as laws by the Presidential Adaptation of Laws Order, 1950. The nature of these ordinances was established by the Supreme Court in Hansraj Moolji V. The State Of Bombay [AIR 1957 SC 497]. In this case, the appellant was prosecuted in 1953 under the Denomination Bank Notes (Demonetisation) Ordinance, 1946. He argued that with the ending of the emergency under the India and Burma Emergency Provisions Act, 1940 in 1946, this Ordinance had lapsed. The crux of the appellant's argument was:

• Since the Ordinance had been promulgated in exercise of emergency powers, it lapsed ipso facto on April 1, 1946, when the declaration was made that the emergency was at an end;
• Section 72 of the 9th Schedule of the Government of India Act, 1935, having been restored with effect from April 1, 1946, one must look to its terms as they originally stood, to justify the continuance of the Ordinance after April 1, 1946.

3.3 However, the Supreme Court, in a judgment delivered by Justice NH Bhagwati, held that:

'If by the operation of Section 1(3) of the India and Burma (Emergency Provisions) Act, 1940, the words 'for the space of not more than six months from its promulgation' were omitted from Section 72 (of the Government of India Act, 1919) during the period specified in Section 3 of that Act, viz., June 27, 1940 to April 1, 1946, there was no limitation of the period of duration of the Ordinance in question and the Ordinance having the like force of law as an Act passed by the Indian Legislature without any limitation on its duration was to continue in force until it was repealed.'

(emphasis added)

3.4 These Ordinances have, therefore, been treated as statutes. For instance, the Currency Ordinance, 1940 was repealed finally by the Coinage Act, 2011. The Standing Committee on Finance (2009-10) in its Twenty Second Report, on the Coinage Bill, 2009, witnessed the following discussion on the repeal of the Currency Ordinance, 1940:

'The Currency Ordinance, 1940 was promulgated after passing of the India and Burma (Emergency Provisions) Act, 1940 which provided that Ordinances made during the period of the emergency beginning June 27, 1940 would not lapse within six months. This made the Currency Ordinance, 1940 of permanent nature like an Act of competent Legislature and continued to be in force. The Ordinance was continued and adopted by a Presidential promulgation, 'Adoption of Laws Order, 1950' issued under powers conferred by clause (2) of Article 372 of the Constitution.'

3.5 Under the scheme of the Constitution of India, the power to promulgate an Ordinance rests on the premise that since the Executive enjoys the confidence of the Legislature, it should be allowed to pass temporary laws which address unforeseen emergencies that may arise when the Parliament is not in session.

The constitutional position with regard to promulgation of ordinances was established in DC Wadhwa and Ors. v. State of Bihar and Ors. [(1987) 1 SCC 378], where the Supreme Court held that it would be a colourable exercise of power on the part of the Executive to continue an Ordinance beyond the period limited by the Constitution.

Permanent ordinances go against the scheme of the Constitution, since Article 123 mandates that every Ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament. Hence, as a matter of principle, these war-time ordinances should be repealed, and replaced by a statute if necessary.

3.6 Of the 17 ordinances recommended for repeal by the PC Jain Commission, 6 have since been repealed by various laws. The following are recommendations made on the remaining 11 permanent ordinances: