Model Answer
0 min readIntroduction
The Ordinance-making power is a unique provision in the Indian Constitution, granting the President and Governors the authority to legislate on specific matters without prior legislative approval. This power, derived from Article 123 and Article 213 respectively, acts as a crucial tool to address urgent situations and bypass potential legislative gridlock. However, it's also a source of potential friction between the executive and legislature, demanding careful scrutiny and adherence to constitutional principles. Recent instances of frequent Ordinance issuance, particularly at the state level, have sparked debates regarding its appropriate use and impact on the democratic process, making a comprehensive understanding of its scope particularly relevant.
Constitutional Basis and Scope of Ordinance-Making Power
The Ordinance-making power allows the executive (President/Governor) to enact laws without going through the regular legislative process. It is an emergency provision designed to address situations requiring immediate action.
Presidential Ordinance-Making Power (Article 123)
The President can issue an ordinance if he/she is satisfied that circumstances exist which render it necessary for immediate action. The ordinance must deal with matters within the Union List or matters that, with respect to the States, are expressly excluded from the legislative competence of the State legislatures.
- Scope of Subject Matter: The ordinance must relate to matters specifically enumerated in the Union List of the Ninth Schedule of the Constitution. This is a significant restriction.
- 'Satisfied' Condition: The President's satisfaction is not subject to judicial review. However, this does not mean the power is unlimited. It must be based on justifiable reasons.
- Duration: An ordinance has a limited life – six months from the date of its publication, or until sooner repealed or replaced by a law passed by Parliament.
- Laying Before Parliament: The ordinance must be laid before both Houses of Parliament as soon as Parliament reassembles after its issue.
- Judicial Review: While the President's satisfaction is not reviewable, the ordinance itself is subject to judicial review if it violates fundamental rights or is ultra vires the Constitution.
Governor's Ordinance-Making Power (Article 213)
Similar to the President, the Governor can issue ordinances if he/she is satisfied that circumstances exist necessitating immediate action. The ordinance must relate to matters within the State List or matters that, with respect to other States, are expressly excluded from the legislative competence of the State legislatures.
- Scope of Subject Matter: The ordinance must relate to matters specifically enumerated in the State List.
- ‘Satisfied’ Condition: Like the President, the Governor's satisfaction is not justiciable.
- Duration: An ordinance has a life of six months or until sooner repealed or replaced by a law passed by the State Legislature.
- Laying Before Legislature: The ordinance must be laid before the State Legislature as soon as the legislature reassembles.
- Judicial Review: Similar to Presidential ordinances, Governor's ordinances are also subject to judicial review.
Comparison Table: Presidential vs. Governor's Ordinance-Making Power
| Feature | Presidential Ordinance | Governor's Ordinance |
|---|---|---|
| Constitutional Basis | Article 123 | Article 213 |
| Subject Matter | Union List or matters excluded from State legislative competence | State List or matters excluded from State legislative competence |
| Review of 'Satisfaction' | Not Justiciable | Not Justiciable |
| Duration | 6 Months | 6 Months |
Checks and Balances on Ordinance-Making Power
The Ordinance-making power isn't absolute. Several checks and balances exist to prevent its arbitrary use.
- Parliamentary/Legislative Oversight: Ordinances must be laid before Parliament/State Legislature and can be annulled by a resolution.
- Judicial Review: The Supreme Court can strike down an ordinance if it is unconstitutional. The R.C. Cooper v. Union of India (1970) case established the principle that the President’s satisfaction is not immune from judicial scrutiny if it is demonstrably arbitrary.
- Public Opinion & Media Scrutiny: Public awareness and media reporting can influence the government's decision to issue or retain ordinances.
- Potential for Motion of Admonition: While rare, Parliament/State legislature can pass a motion of admonition against the executive for issuing ordinances.
Potential for Misuse and Concerns
Frequent or unwarranted use of ordinances can undermine the legislative process and erode public trust.
- Bypassing Legislative Debate: Ordinances circumvent the robust debate and scrutiny that happens within the legislature.
- Erosion of Federalism: Excessive reliance on ordinances can weaken state legislatures and centralize power.
- Lack of Transparency: Ordinances are often issued without proper consultation with stakeholders.
- Impact on Rule of Law: Frequent Ordinance use can create a perception that laws are being made arbitrarily, impacting the rule of law.
The Central Government issued an ordinance to amend the Electricity Act, 2003, aiming to reform the power sector. The ordinance faced criticism for being pushed through without proper parliamentary debate and for potentially weakening state control over electricity distribution. The ordinance was later withdrawn after facing resistance from several states.
Conclusion
In conclusion, the Ordinance-making power is a vital, albeit controversial, provision in the Indian Constitution. While intended as an emergency measure, its frequent usage, particularly at the state level, raises concerns about undermining legislative processes and federalism. A more judicious and transparent application of this power, coupled with robust legislative oversight and judicial scrutiny, is crucial to safeguarding the integrity of the Indian democratic system and ensuring that it remains accountable to the people. The need for a balance between executive expediency and legislative authority remains paramount.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.