The ordinance making power was envisaged for unforeseen and sudden situations where the executive needed additional legal sanction to address the situation. However, it appears that executive has completely disregarded this requirement of necessity for immediate action. Discuss critically.

 Article 123 of the Indian constitution empowers the President to promulgate ordinances. It is an important tool when neither House of Parliament is in session and circumstances exist, which render it necessary for him to take immediate action.
Similarly, Article 213 gives the same power to the Governor of a State.
However in the recent past there have been many ordinances which have raised eye-brows for curtailing its over-usage.
Except in 1963, not a single year has gone by without the government resorting to the ordinance- making power. In fact, in 1994, 34 ordinances were promulgated, the highest in a year till date.
 
Hriday Nath Kunzru and Professor K.T. Shah have called for restricting the executive’s power to promulgate ordinances by greater oversight by legislatures.
The Supreme Court has stated that if the executive were permitted to continue in this way, wherein the provisions of an ordinance in force is further used by adopting the methodology of re-promulgation without submitting to the voice of the legislature. This is sheer usurpation by the executive of the law-making function of the legislature.
Also, the Apex Court has stated that the frequent passing of ordinances violates the principle of separation of powers. Because, the executive takes over legislative business (of law making). This is subversion of the democratic process and violates the core of our constitutional scheme, because then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive.
Another criticism of ordinances is that, ordinances have the same effect as laws. But its promulgation is not preceded by debates and this does not reflect the will of the nation.
Therefore, when ordinances are used so frequently, it results into a situation famously known as ‘ordinance raj’, which is definitetly undesirable.
In D.C. Wadhwa and others vs State of Bihar and others, 1987, the Supreme Court has strongly condemned this practice and called it as a constitutional fraud.
Further, in 1970, in Rustom Cavasjee Cooper vs Union of India, the apex court has established that judicial intervention is absolutely necessary. So, when the executive abuses its power to issue ordinances, the judiciary could intervene.

Therefore, relentless resort to ordinance route is no good trend. The opposition must display maturity and should not disrupt the proceedings of the Parliament. Parliamentary time should be well-utilized in order to discuss and debate matters of importance and decide upon the fate of the bills.
Lastly it should be subject to judicial review in line of the principles evolved in S. R. Boomai’s case by making strong judicial review mechanism.

Question for UPSC Mains:
"The ordinance making power was envisaged for unforeseen and sudden situations where the executive needed additional legal sanction to address the situation. However, it appears that executive has completely disregarded this requirement of necessity for immediate action." Discuss critically.

Published: January 4, 2017 | Modified:June 27, 2019

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