Day 6 – Q 1.Critically examine the utility of ordinance making powers in a parliamentary democracy.
1. Critically examine the utility of ordinance making powers in a parliamentary democracy.
एक संसदीय लोकतंत्र में अध्यादेश बनाने की शक्ति की उपयोगिता की समालोचनात्मक जांच करें।
Synopsis:
Recently, Company Amendment ordinance was promulgated by Government on 2nd Nov 2018.
Article 123/213 empowers the President/Governor to promulgate ordinances during the recess of parliament/state legislature.
Utility of Ordinance;
- As DR BR Ambedkar opined that the mechanism of issuing an ordinance is devised in order to deal with a situation that may suddenly and immediately arise when Parliament is not in session
- To address concern about the people : Criminal Law(Amendment) Ordinance 2013 that was issued in response to the protests for Delhi gang rape incident.
Issues associated with ordinance:
- The executive power to issue ordinance goes against the philosophy of separation of power between legislature, executive, judiciary
- It bypasses the democratic requirements of arguments and deliberations.
- Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinance has been conferred on President and Governor
- It threatens sovereignty of Parliament and State legislature which have been constituted as primary law givers under constitution.
Ordinances have often been bone of contention between and executive and legislature and many time subjected to Judicial review:
| Year | Legislative development | Key arguments |
| 1970 | RC Cooper vs.Union of India | In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature. |
| 1975 | 38thConstitutional Amendment Act | Inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground. |
| 1978 | 44thConstitutional Amendment Act | Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance. |
| 1980 | AK Roy vs.Union of India | In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”. |
| 1985 | TVenkata Reddy vs.State of Andhra Pradesh | In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively. This implies that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures. |
| 1987 | DC Wadhwa vs. State of Bihar | It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature. Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances. |
| 2017 | Krishna Kumar Singh vs. State of Bihar | The ordinance making power is not a parallel source of legislation”, SC ruled that “re-promulgation of ordinances is a fraud on the Constitution” and maintained that ordinances are not immune from judicial scrutiny when the “power has been exercised to secure an oblique purpose.” |
The above cases make it clear that even SC has time and again stressed need for legislative scrutiny and not re-promulgation of ordinances.
Constitution has provided for separation of powers where enacting laws is the function of legislature .The executive must show self restraint and use ordinance making power only as per the spirit of constitution and not to evade legislative scrutiny and debates.
Best Answer: Vignesh Sabari
Note: Word limit is breached but structuring and points are covered well
The power to make laws in a parliamentary democracy lies with the legislative organ. However, Article 123 allows the President of India and Article 213 allows the Governor to promulgate ordinances to deal with the situations that require immediate attention. President (or Governor) promulgates ordinance under the advice of the council of ministers when the parliament (or state legislature) is not in session.
Why is Ordinance making power necessary?
- The idea intended by the constituent assembly was that this power is necessary to tackle the situation that demands immediate action. It also commented that this is extraordinary power should be used as a last resort.
- Government also take the ordinance route to address the urgent matters of public concern like the Criminal Law (Amendment) Ordinance 2013 that was issued in response to the protests for Delhi gang rape incident
Misuse of ordinance making power:
- Ordinances are used by governments to pass legislation which is currently pending in Parliament, as was the case with the Food Security Ordinance
- Ordinances are promulgated when there is no consensus in the parliament. For E.g.: the recent ordinance on altering the Land Reforms Act.
- Re-promulgation: The Security Laws (Amendment) Ordinance, 2014 was recently re-promulgated for the third time during the term of 15th Lok Sabha. Re-promulgation of Ordinances raises questions about the authority of the Parliament as the highest law making body.
- In Wadhwa vs. State of Bihar (1986), the Supreme Court held that it is unconstitutional to re-promulgate ordinances without putting it to vote in the parliament.
Ordinance reforms are the need of the hour; this extreme power can turn the state to be a leviathan. The ultimate object should be to reduce the undemocratic elements to a minimum (eliminate, if possible) and uphold the democratic values which are the heart and soul of parliamentary democracy.
