What are the essential conditions of promulgating the ordinance with respect to President and Governors in India? How far in the present time the ordinance making power became a tool of bypassing the democratic procedure? Discuss with suitable examples.

The ordinance making power is the most important legislative powers of president and governor to make laws on those subject listed in union and state list respectively.
 Essential Condition to promulgate ordinance:

  • Under article 123 President can promulgate ordinance when both the house of parliament is not in session or when either of the two house of parliament is not in session whereas Governor can promulgate ordinance under 213 when state legislature is not in session.
  • This ordinance must satisfy the necessity of immediate action test

Hence ordinance making power has been vested to president and governor to deal with unforeseen or urgent matters.
However in recent times ordinance has been promulgated regularly with intention to bypass legislative deliberation which act against the principle of separation of power and such act does not convey will of people because of bypassing parliamentary legislation and rendering opposition ineffective.
For example repromulgation of Land Ordinance that prescribes processes for acquisition of land for public projects Despite Opposition protests, the Union Cabinet  recommended to the President the re-issuance of the ordinance on the ground that it was necessary for maintaining continuity and providing a framework to compensate people whose land had been acquired
The danger of re-promulgation lies in the threat it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law givers under the Constitution. Open legislative debate and discussion provides sunshine which separates secrecy of ordinance making from transparent and accountable governance through law making.

Question for UPSC Mains:
What are the essential conditions of promulgating the ordinance with respect to President and Governors in India? How far in the present time the ordinance making power became a tool of bypassing the democratic procedure? Discuss with suitable examples.

Published: March 14, 2017 | Modified:June 27, 2019

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