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News Article: The Controversial Use of Ordinances in India's Legal System
In the heart of India's democratic system, the power to issue ordinances - temporary laws enacted by the executive when the legislature is unable to act promptly - has become a subject of ongoing debate. This power, vested in the President and Governors, is a necessary emergency tool, but its frequent use and re-promulgation have been challenged as an abuse of power.
The ordinance-making power in India is derived from Articles 123 and 213 of the Indian Constitution, granting the President and Governors the authority to promulgate ordinances when either House of Parliament or the state legislature is not in session and immediate action is needed. Ordinarily, ordinances have the same force as statutes but must be approved within six weeks of the legislature reassembling or they cease to have effect.
Initially conceived as an emergency and exceptional measure, the power has often been used extensively during politically sensitive or obstructed legislative periods. For instance, during Indira Gandhi’s tenure (1970-77), 77 ordinances were promulgated, and large numbers continue to be issued by successive governments.
However, the Supreme Court has made it clear that the President’s or Governor’s satisfaction to promulgate an ordinance is not immune from judicial review. In the case of RC Cooper vs. Union of India (1970), the Court emphasised that ordinances must be used sparingly and cannot substitute the legislature’s law-making function. In Krishna Kumar Singh vs. State of Bihar (2017), the Supreme Court reiterated this stance, labeling the re-promulgation of ordinances as a "fraud on the Constitution."
Courts restrict ordinances from being used for routine law-making or to circumvent legislative scrutiny, ensuring the balance of powers remains intact. Challenges to ordinances often focus on the validity of the President's/Governor’s satisfaction, ultra vires usage, or procedural lapses such as failure to place the ordinance before the legislature timely.
While ordinances can be promulgated during any period when the legislature is not in session, they are particularly significant during extraordinary situations like political crises, public emergencies, or when urgent legal reform is needed. However, courts restrict ordinances from being used for routine law-making or to circumvent legislative scrutiny, ensuring the balance of powers remains intact.
This judicial activism has been a key check against executive overreach, reinforcing the legislature’s supremacy in law-making. The number of ordinances declined during the coalition era, suggesting a more cautious approach to their use.
The ordinance power forms part of the broader legal evolution influenced by colonial legal practices and post-independence constitutional design focused on separation of powers and rule of law. Related legal reforms and institutional developments, such as the Law Commission’s recommendations over decades, have contributed indirectly to clarifying legislative and executive boundaries, though the ordinance power remains an exceptional executive tool balanced by judicial review.
In summary, the ordinance-making power in India serves as a critical but constitutionally limited executive mechanism for emergency law-making with close judicial scrutiny. Its use during emergency situations emphasises swift governance, but the Supreme Court has consistently intervened to prevent its misuse and protect legislative primacy, especially condemning the practice of ordinance re-promulgation as unconstitutional.
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