The deployment of ordinances in governance has long been a subject of apprehension due to its potential encroachment on the fundamental principle of the separation of powers. The separation of powers doctrine, integral to the democratic fabric, seeks to ensure that the executive, legislative, and judicial branches of government operate independently to prevent any abuse of authority. Ordinances, as a legislative tool vested in the executive, often prompt concerns about the erosion of this vital constitutional principle. Despite acknowledging the justifications for the executive’s authority to issue ordinances in urgent situations, it becomes imperative to scrutinize whether the decisions rendered by the Supreme Court have inadvertently contributed to an increased reliance on this power. Analyzing the judicial pronouncements on the matter will shed light on whether the judiciary has inadvertently expanded the executive’s latitude in resorting to ordinances. Consequently, a critical evaluation of the existing legal landscape prompts the question of whether it is time to reconsider the continuance of this power, raising the crucial inquiry of whether the authority to promulgate ordinances should be repealed to restore a more robust adherence to the separation of powers doctrine.
Tag: Separation of powers between various organs dispute redressal mechanisms and institutions.
Decoding the Question:
- In the Introduction, try to mention the Ordinance Power of the President and Governor mentioned under Article 123 and Article 213 of the Constitution.
- In Body, write about the Supreme Court decisions on the ordinance-making power of the President (and Governor) and assess both sides whether the power to promulgate the Ordinances should be repealed or not.
- In Conclusion, mention the Gujarat Mazdoor Sabha and the Supreme Court verdicts on this case.
Answer:
The Constitution of India under Articles 123 and 213 provides the union and the state governments, powers to promulgate ordinances respectively but only when ‘immediate action’ is necessary. This power can be used only when the legislature is not in session and when such immediate action is needed. It further ceases to operate 6 weeks after the re-assembly of the respective legislature. Further, the executive is the sole judge to declare that a certain situation needs ‘immediate action’.
The Supreme Court Decisions on the Ordinance making Power of the President (and Governor):
- RC Cooper v. Union of India (1970): The Supreme Court in RC Cooper v. Union of India (1970) case held that the decision of ordinance can be challenged on the ground that ‘immediate action’ was not required, as mandated by the Constitution.
- DC Wadhwa Case(1987): took the issue of re-promulgation of ordinances, it noted that the Government of Bihar promulgated 256 ordinances between 1967-81, many of them re-promulgated. It noted that if the government uses this power to bypass the legislature by endlessly re-promulgating ordinances without a single change.
- Krishna Kumar Singh v. State of Bihar (2017): 7-judge constitutional bench held that an ordinance cannot be re-promulgated without attempting to present it to the legislature. And that this is subject to judicial review.
Arguments for not repealing the power to make ordinances:
- Safeguard provided by the Constitution: The Constitution vests law-making powers in the Executive that can be exercised in exceptional circumstances. The President may promulgate an Ordinance when the Parliament is not in session, and Immediate action is required.
- Ordinances bring legislative changes: Ordinances bring legislative changes to address certain gaps in the legal framework. Therefore there is a need to create space for wider deliberation and expert input on such changes.
- Ordinances allow prompt legislative changes: Ordinances allow for prompt legislative action in situations of emergency. For example, The Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated on April 22, 2020, which amends the Epidemic Diseases Act, 1897.
- One way to minimize the need for Ordinances could be by increasing the number of parliament sittings. The National Commission to Review the Working of the Constitution (2002) had recommended that the Lok Sabha should have at least 120 sittings in a year, while the Rajya Sabha should have 100 sittings.
- Constituent Assembly in favor of Ordinances: The Constituent Assembly had extensive deliberations on whether the Executive should have the power to promulgate Ordinances. Some experts argued that Ordinances should be used only in the case of emergencies; others argued that law-making powers should rest only with the legislature and not the Executive.
The power to promulgate the Ordinances should be repealed:
- Liable for Judicial Review: In 1980, in AK Roy v. Union of India, the Supreme Court held that the President’s Ordinance-making powers are not beyond judicial review.
- Limitation on the legislative power of the government: The Union government and the state governments can promulgate ordinances only on matters on which Parliament and the state legislatures have legislative powers respectively.
- Legislative Review: Whenever a Bill seeking to replace an ordinance is introduced in the House, a statement explaining the circumstances that had necessitated immediate legislation through the ordinance route should also be placed before the House.
- Re-promulgation is unconstitutional: In January 2017, a seven-judge Constitution Bench declared this practice to be unconstitutional. The judgment concluded that “Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
In Gujarat Mazdoor Sabha, the Supreme Court declared that the Constitution was “born from a transformative vision which aims to achieve social and economic democracy.” For the Constitution to survive not only as a text but as a legitimate source of values and norms that dictate our daily life the Executive must exercise its powers with the restraint imagined by the framers of the Constitution. These additional safeguards provide safety only against authoritarian power excesses. However, it still does not solve the challenge of encroachment of legislative powers. In recent times, the Commission for Air Quality Management in the National Capital Region and Adjoining Areas Ordinance, 2020, and the Indian Medical Council Amendment Ordinance, 2019, were re-promulgations. Similarly, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
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