Model Answer
0 min readIntroduction
The Indian Constitution provides a unique mechanism for the executive – the President at the Union level and Governors at the state level – to enact ordinances under Article 123 and Article 213 respectively. These powers, intended as temporary legislative measures during emergencies or when parliamentary/assembly proceedings are delayed, represent a departure from ordinary lawmaking processes. However, their potential for abuse has frequently sparked debate, prompting judicial scrutiny and raising concerns about the separation of powers. This answer will critically examine this power, balancing its pragmatic utility against the risk of overreach, drawing upon relevant case laws to illustrate the complexities involved.
Constitutional Basis & Scope
The ordinance-making powers are rooted in the principle of parliamentary supremacy (though tempered by constitutionalism). Article 123 allows the President to promulgate ordinances when Parliament cannot be convened or is adjourned. Similarly, Article 213 grants Governors a comparable power for state legislatures. These ordinances have the same force and effect as Acts passed by the respective legislatures.
Pragmatic Advantages: A Tool for Urgent Governance
- Emergency Situations: Ordinances allow immediate action in crises where waiting for legislative approval would be detrimental (e.g., natural disasters, public health emergencies).
- Administrative Expediency: They facilitate quick implementation of policies when parliamentary/assembly time is limited or contentious debates are anticipated.
- Testing Ground for Legislation: Ordinances can serve as a pilot program to gauge the impact of proposed legislation before formal enactment (although this practice is discouraged).
Potential for Overreach and Challenges
While valuable, the ordinance-making power presents significant risks:
- Circumventing Legislative Process: Governments might use ordinances to bypass parliamentary/assembly scrutiny and push through unpopular or controversial measures. This undermines the democratic process.
- Prolonged Existence & Abuse: Ordinances are meant to be temporary, but they can remain in force for extended periods if not replaced by Acts (as per Article 123(4) and 213(2)). Repeated re-promulgation is also a concern.
- Judicial Review Concerns: The power’s scope has been subject to judicial interpretation, raising questions about its permissible limits.
Case Law Analysis
Shibban Sharan Singh v. Shakti Nath Rai (1980)
This landmark case established that ordinances are "colourable legislative actions," meaning they must genuinely address an emergency situation. The court emphasized the importance of adherence to constitutional principles and underlined the requirement for a real, emergent need justifying the ordinance.
R.K. Jadwani v. Union of India (1992)
The Supreme Court reiterated that ordinances are essentially Acts passed in an emergency and must be laid before the legislature as soon as possible. The court also cautioned against re-promulgation of ordinances, deeming it a violation of constitutional principles.
Dev Dutt v. Union of India (1995)
This case further clarified that an ordinance can only deal with matters within the legislative competence of the legislature to which it is eventually submitted for approval.
Checks and Balances – Current Status & Needed Improvements
- Legislative Approval: Ordinances must be laid before the respective legislatures and approved as Acts.
- Judicial Review: Ordinances are subject to judicial review, allowing courts to assess their constitutional validity.
- Presidential/Governor's Discretion: The exercise of power is at the discretion of the President/Governor, who acts on the advice of the Council of Ministers.
However, several improvements are needed:
- Time Limits for Validation: Strict adherence to time limits for replacing ordinances with Acts should be enforced. The current system lacks a robust mechanism for penalizing delays.
- Restrictions on Re-promulgation: The Supreme Court's observation against re-promulgation needs to be codified into law, preventing governments from repeatedly issuing ordinances on the same subject matter.
- Increased Parliamentary/Legislative Scrutiny: Committees should be formed to specifically review ordinances and their impact before they are converted into Acts.
Table: Comparison of Ordinance-Making Power – President vs. Governor
| Feature | President (Article 123) | Governor (Article 213) |
|---|---|---|
| Basis | Council of Ministers' advice | State Council of Ministers’ advice |
| Scope | Matters within Union List | Matters within State List |
| Duration | Until Parliament makes law; Maximum 6 months | Until State Legislature makes law; Maximum 6 months |
| Procedure for Validation | Laid before Parliament, requires approval | Laid before State Legislature, requires approval |
Conclusion
The ordinance-making power is a vital tool for ensuring pragmatic governance in India. However, its potential for abuse necessitates careful oversight and stricter adherence to constitutional principles. While judicial pronouncements have provided crucial checks, legislative reforms are needed to prevent prolonged existence of ordinances, curb re-promulgation, and enhance parliamentary/legislative scrutiny. Striking a balance between executive flexibility and democratic accountability 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.