Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed?

Introduction

The ordinance-making power of the Executive, provided under Article 123 (President) and Article 213 (Governor) of the Indian Constitution, allows the Executive to legislate during the recess of Parliament or State Legislatures. While this power ensures legislative continuity in urgent situations, its frequent misuse has raised concerns about undermining the separation of powers, a basic feature of the Constitution as upheld in the Kesavananda Bharati case (1973).

Key Dimensions of Ordinance-Making Power

Rationale for Ordinance-Making Power

• Legislative Continuity: Ordinances address urgent legislative needs when Parliament or State Legislatures are not in session.

  • Example: Ordinances during national emergencies or pandemics.

• Flexibility in Governance: Provides the Executive with a mechanism to respond to unforeseen situations without waiting for legislative sessions.

  • Example: The Essential Commodities (Amendment) Ordinance, 2020 during the COVID-19 pandemic.

• Historical Context: Borrowed from the Government of India Act, 1935, this power was intended to ensure administrative efficiency in a vast and diverse country like India.

Concerns Regarding Violation of Separation of Powers

• Frequent Misuse: Ordinances are often promulgated not for emergencies but to bypass legislative scrutiny.

  • Example: The Land Acquisition Ordinance, 2014, re-promulgated multiple times without parliamentary approval.

• Erosion of Legislative Authority: Overuse of ordinances undermines the deliberative process of law-making, which is central to democracy.

• Judicial Criticism: The Supreme Court in D.C. Wadhwa v. State of Bihar (1987) held that repeated re-promulgation of ordinances is a fraud on the Constitution.

Role of Supreme Court in Facilitating or Restricting Ordinance Power

Facilitating Ordinance Power

• Limited Judicial Review: In R.C. Cooper v. Union of India (1970), the Court held that the President’s satisfaction in promulgating ordinances is not subject to judicial review, giving the Executive significant leeway.
• Presumption of Constitutionality: Ordinances are presumed valid unless proven otherwise, as reiterated in Krishna Kumar Singh v. State of Bihar (2017).

Restricting Ordinance Power

• Curbing Re-promulgation: In D.C. Wadhwa case (1987), the Court ruled that re-promulgation of ordinances without legislative approval violates the spirit of the Constitution.

• Post-Lapse Effects: In Krishna Kumar Singh case (2017), the Court clarified that rights created by an ordinance do not survive after it lapses, discouraging misuse.

• Doctrine of Separation of Powers: The judiciary has consistently emphasized that ordinances should be used only in exceptional circumstances.

Should the Power to Promulgate Ordinances Be Repealed?

• Arguments for Repeal:

  • Undermines Democracy: Ordinances bypass the legislative process, reducing accountability.
  • Scope for Misuse: Frequent and unjustified use dilutes the separation of powers.
  • Judicial Overreach: Courts are often burdened with reviewing ordinances, leading to judicial encroachment into legislative and executive domains.

• Arguments Against Repeal:

  • Essential for Emergencies: In a vast and diverse country like India, unforeseen situations necessitate executive flexibility.
  • Checks and Balances Exist: Ordinances must be approved by the legislature within six weeks of its next session, ensuring accountability.
  • Global Practice: Similar powers exist in other democracies, such as executive orders in the USA.

Way Forward

• Stringent Guidelines: Define clear criteria for promulgating ordinances to prevent misuse.
• Legislative Oversight: Strengthen parliamentary committees to scrutinize ordinances before they are tabled.
• Judicial Safeguards: Expand judicial review to include the necessity and urgency of ordinances.
• Public Accountability: Mandate the Executive to provide a detailed justification for promulgating ordinances.

Conclusion

While the ordinance-making power is a necessary constitutional tool for addressing emergencies, its misuse undermines the spirit of democracy and the separation of powers. Instead of repealing this power, a balanced approach involving stringent safeguards, legislative oversight, and judicial vigilance can ensure its judicious use, aligning with the constitutional ethos of checks and balances.