Model Answer
0 min readIntroduction
The ordinance-making power of the Executive is a crucial aspect of Indian governance, allowing the government to enact laws without immediate parliamentary approval during emergencies. Rooted in Article 123 of the Constitution, it enables the President (and Governor at the state level) to promulgate ordinances when either House of Parliament (or State Legislature) is not in session. However, this power, while intended for exceptional circumstances, has been subject to criticism regarding its potential for abuse and circumvention of the legislative process. Recent instances of frequent ordinance promulgation have reignited the debate on the need for suitable restraints on this executive prerogative.
Arguments for Restraining Ordinance-Making Power
Several arguments support the need to restrain the Executive’s ordinance-making power:
- Circumvention of Parliament: Ordinances can be used to bypass the deliberative process of Parliament, reducing legislative scrutiny and potentially leading to poorly drafted laws. The Kesavananda Bharati v. State of Kerala (1973) case established the ‘basic structure’ doctrine, implicitly suggesting that frequent ordinance promulgation could undermine the democratic structure.
- Executive Fiat: The power concentrates significant legislative authority in the hands of the Executive, potentially leading to ‘executive fiat’ and diminishing the role of elected representatives.
- Temporary Nature & Repeated Re-promulgation: Ordinances are temporary measures, requiring parliamentary ratification within six weeks of reassembly. However, governments have repeatedly re-promulgated ordinances, effectively keeping them alive for extended periods, as seen with several ordinances related to land acquisition and economic reforms.
- Article 14 & Equality: Ordinances, if not carefully crafted, can violate the principle of equality enshrined in Article 14 of the Constitution.
- Lack of Public Consultation: Ordinances are often promulgated without adequate public consultation or debate, potentially leading to laws that do not reflect the needs and concerns of the citizenry.
Arguments Against Excessive Restraint
Conversely, there are arguments against imposing excessive restraints on the ordinance-making power:
- Addressing Urgent Needs: Ordinances are essential for addressing unforeseen emergencies and urgent situations where immediate legislative action is required. For example, the Promulgation of ordinances during the COVID-19 pandemic to address health and economic challenges.
- Legislative Inefficiency: Parliamentary sessions are often disrupted or delayed, making it difficult to enact legislation promptly. Ordinances provide a mechanism to overcome these inefficiencies.
- Executive Accountability: The Executive is accountable to the Parliament, which has the power to reject or amend ordinances when they are presented for ratification.
- Constitutional Provision: Article 123 explicitly grants this power to the President, and any excessive restraint could be seen as an infringement on the constitutional authority of the Executive.
Way Forward: Suitable Restraints
A balanced approach is necessary. Completely curtailing the ordinance-making power is impractical, but suitable restraints are crucial:
- Judicial Review: Strengthening judicial review of ordinances to ensure they comply with the Constitution and do not violate fundamental rights.
- Time Limit & Re-promulgation Restrictions: Strictly limiting the number of times an ordinance can be re-promulgated. A constitutional amendment could specify a maximum number of re-promulgations or a total duration for which an ordinance can remain in effect.
- Parliamentary Scrutiny: Mandating a more rigorous parliamentary review process for ordinances, including detailed debates and committee scrutiny.
- Transparency & Public Consultation: Requiring the government to publish a detailed statement of reasons for promulgating an ordinance and to conduct public consultations before doing so.
- Codification of Guidelines: Establishing clear guidelines and principles governing the use of ordinance-making power through a constitutional amendment or a comprehensive law.
The 267th Law Commission Report (2015) also suggested measures to regulate the ordinance-making power, emphasizing the need for a balance between executive efficiency and legislative supremacy.
Conclusion
The ordinance-making power is a necessary tool for the Executive to respond to urgent situations, but its potential for misuse necessitates careful restraint. While completely eliminating this power is undesirable, implementing measures such as stricter judicial review, limitations on re-promulgation, and enhanced parliamentary scrutiny can safeguard the principles of parliamentary democracy and ensure that this power is exercised responsibly and in the public interest. A nuanced approach, balancing executive efficiency with legislative supremacy, is vital for maintaining a healthy constitutional framework.
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.