Model Answer
0 min readIntroduction
Ordinances are temporary laws promulgated by the President of India (Article 123) or a Governor of a State (Article 168) when Parliament or the State Legislature is not in session. They are intended to address urgent matters requiring immediate legislative action. While the Constitution grants this power, its frequent invocation has consistently raised concerns about circumventing the democratic process and potentially violating the spirit of the separation of powers. Recent years have witnessed a significant increase in the number of ordinances promulgated, prompting renewed debate about their necessity and constitutional validity, particularly in light of Supreme Court rulings.
Rationale for Ordinance-Making Power
The ordinance-making power is justified on several grounds:
- Urgency: It allows the executive to act swiftly in situations demanding immediate legislative intervention, such as natural disasters or economic crises.
- Legislative Inefficiency: It bypasses potential delays in the legislative process, ensuring timely action.
- Temporary Nature: Ordinances have a limited lifespan (six weeks from the reassembly of the legislature) and require parliamentary ratification to become permanent laws.
However, critics argue that this power can be misused to bypass legislative debate and scrutiny, effectively allowing the executive to legislate without proper democratic oversight.
Judicial Interpretation and its Impact
The Supreme Court has consistently upheld the validity of the ordinance-making power, but has also imposed limitations. Key cases include:
- K.C. Chacko v. State of Kerala (1968): The Court held that the power to issue ordinances is not a substitute for the legislative process and cannot be used to circumvent it. It emphasized that ordinances should be used only in exceptional circumstances.
- Indra Sawhney v. Union of India (1992): While not directly related to ordinances, this case reinforced the principle of judicial review over executive actions, indirectly impacting the scrutiny of ordinances.
- Krishna Kumar Singh v. State of Bihar (2004): The Court struck down an ordinance as it dealt with a matter already covered by existing legislation, highlighting the need for ordinances to address gaps in the law, not to replace existing laws.
Interestingly, these rulings, while establishing safeguards, haven’t demonstrably *reduced* the frequency of ordinance promulgation. Instead, governments have often framed their actions within the parameters set by the Court, justifying ordinances based on ‘urgency’ even when the situation doesn’t strictly warrant it. The Court’s reluctance to broadly invalidate ordinances based on political motivations has arguably facilitated their continued use.
Arguments for and Against Repealing the Ordinance-Making Power
| Arguments for Repeal | Arguments Against Repeal |
|---|---|
| Strengthens Democracy: Eliminates a potential tool for executive overreach and reinforces the primacy of the legislature. | Provides Flexibility: Allows the government to respond quickly to unforeseen circumstances and emergencies. |
| Reduces Circumvention: Prevents the bypassing of legislative debate and scrutiny. | Avoids Governance Impasse: Prevents situations where urgent legislative action is delayed due to legislative sessions being adjourned. |
| Upholds Separation of Powers: Reinforces the distinct roles of the executive and legislature. | Constitutional Provision: Repealing it would require a constitutional amendment, a complex and time-consuming process. |
A complete repeal might be too drastic. A more pragmatic approach could involve stricter constitutional safeguards, such as requiring a higher threshold for justifying ordinance promulgation (e.g., a specific definition of ‘emergency’ or a requirement for parliamentary approval within a shorter timeframe).
Conclusion
The ordinance-making power, while constitutionally sanctioned, presents a continuous challenge to the principles of parliamentary democracy. While the Supreme Court has attempted to define its boundaries, its decisions haven’t effectively curbed its frequent use. A complete repeal is debatable, but strengthening the safeguards surrounding its invocation – perhaps through constitutional amendments or stricter judicial review – is crucial to prevent its misuse and uphold the spirit of separation of powers. A balance must be struck between the executive’s need for swift action and the legislature’s right to deliberate and legislate.
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.