Day 8 – Q 1.Explain the ordinance making powers of the President. Don’t ordinances impinge upon the principles of a parliamentary democracy? Critically comment.

1. Explain the ordinance making powers of the President. Don’t ordinances impinge upon the principles of a parliamentary democracy? Critically comment. 

राष्ट्रपति की अध्यादेश जारी करने वाली शक्तियों की व्याख्या कीजिए। क्या अध्यादेश जारी करना संसदीय लोकतंत्र के सिद्धांतों पर आघात नहीं होता है? समालोचनात्मक टिप्पणी करें।

Introduction:

Ordinances are temporary laws, which can be issued by the President when Parliament is not in session. Article 123 of the Indian Constitution grants the President of India the power to promulgate ordinances when either of the two Houses of the Parliament are not in session.

Body: 

Ordinance making powers of the president: 

Ordinances may relate to any subject that the parliament has the power to make laws and would be having same limitations. Thus, the following limitations exist:

• When legislature is not in session: The President can only promulgate an ordinance when either of the House of Parliament is not in session.
• Immediate action is needed: The President though has the power of promulgating the ordinances but the same cannot be done unless he is satisfied that there are circumstances that require him to take immediate action. E.g., The Criminal law amendment bill, 2013 was promulgated by an ordinance due to the exigent nature of the situation.
• Parliamentary approval: After the ordinance has been passed, it is required to be approved by the parliament within six weeks of reassembling. The same will cease to operate if disapproved by either House.
• Ordinances cannot be promulgated to make any provision which the parliament would not under this constitution be competent to enact and also cannot be promulgated to amend the constitution.

Ordinances not impinging upon parliamentary democracy: 

• The idea intended by the Constituent Assembly when the provision for ordinances was included in the Constitution was that this power is necessary when immediate action was needed. Also it meant that the powers are extraordinary so they are not to be employed in normal times.

• Governments also take the ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident.

• Ordinances are issued by the President based on the advice of the Union Cabinet and not based on discretion.

Ordinances impinge upon the principles of parliamentary democracy:

• Many times ordinances are issued by the government for lack of consensus in parliament or reluctance to face the legislature. In Krishna Kumar Singh vs. State of Bihar SC held that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the constitution.
• Ordinances are used by governments to pass legislation which is currently pending in parliament, as was the case with the Food Security Ordinance.
• Unnecessary or prolonged re-promulgation of Ordinances raises questions about the legislative authority of the parliament as the highest law making body. For ex: The Securities Laws (Amendment) Ordinance, 2014 was  re-promulgated for the third time during the term of the 15thLok Sabha. 
• It gives arbitrary power in the hands of the executive. The law is announced without any debate and discussion and hence lacks the refinement that normal legislation possesses.
• Even if the ordinance lapses or is repealed by the Legislative Assembly, the ordinance would not be void ab initio. Any legal effect caused by the ordinance in that period would continue to exist. Thus, even if the democratic institutions are to approve or disapprove of the acts later, the fact is that the undemocratic laws can affect the nature of the Indian State quite drastically.

Conclusion:

The constitution has provided for separation of power where enacting laws is the function of the legislature. The executive must show self- restraint and use ordinance making power only as per the spirit of the constitution and not to evade legislative scrutiny and debates.