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Mains Answer Writing

3-November-2023

Q1) Resorting to ordinances has always raised concerns about the violation of the spirit of the separation of power doctrine. While noting the rationales justifying the power to promulgate, analyze whether the decision of the Supreme Court on the issue has further facilitated resorting to this power. Should the power to promulgate the ordinances be repealed?

ANSWER

  • Article 123 and Article 213 of the Indian Constitution grant the President and governor certain law-making powers. The President or Governor can make laws whenever the need arises and either of the two houses is not in session, such laws are called Ordinances. These ordinances have the same force and effect as an Act of Parliament or State Legislature but are temporary in nature (Valid up to max. Six months and Six weeks).

RATIONALES BEHIND ORDINANCE MAKING POWERS

  1. Ordinances are primarily just laws that are passed by the President of India (or governors of the states), in times of need and urgency, to combat unforeseen circumstances- like the current pandemic.
  2. The provision of the Ordinance has often come in handy when the time for it has arrived, for example, the recent ‘The Epidemic Act 1897 (Amendment) Act Ordinance, 2020’, which includes the deadly Coronavirus disease of 2019.
  3. There are approximately 790 members of Parliament, coming from far-flung areas of the geographically vast landmass of India. It is not possible to hold a parliamentary session on short notice. Therefore such ordinances enable the government to take immediate legislative action in desperate times.
  4. The Constitution further states that the parliament must ratify the ordinance within six weeks of its next meeting after it has been passed. The same will stop working after six months or if it is rejected by the House. This serves to protect the division of powers.

DO THE DECISIONS OF THE SUPREME COURT ON THE ISSUE HAVE FURTHER FACILITATED RESORTING TO ORDINANCE-MAKING POWER?

  • Out of hundreds of ordinances passed till now, very few of them can be classified under actual emergencies, and hence necessary as a constitutional obligation. Concerns have been raised that when ruling leaders and executives find it difficult to pass certain laws through the house of elected representatives, they resort to ordinances, which is a violation of the spirit of separation of power doctrine.
  • To clarify ordinance making powers and to protect the spirit of separation of powers, Supreme Court has delivered many judgments, some of which are as follows;
  1. R.C. Cooper v. Union of India: It was held that the President’s decision can be challenged on the ground that no ‘immediate action’ was required on his part.
  2. A.K. Roy v. Union of India: The Supreme Court argued that the President’s power of making Ordinances is not beyond the Judicial Review of the court.
  3. S.R. Bommai v. Union of India: In this case, the scope of Judicial Review was expanded that where the action by the President is taken without the relevant materials, such unreasonable action would be considered to be in bad faith.
  4. D.C. Wadhwa v. State of Bihar: In this case, the State of Bihar’s promulgating and re-promulgating ordinances were challenged. Between the years 1967-81, 256 ordinances were promulgated and then re-promulgated and some among them remain in existence for up to 14 years. The Supreme Court ruled that the use of ordinances should be limited to some point in time (emergency situations).

All the major decisions taken by the Supreme Court neither facilitated nor prohibited the ordinance-making powers of the President and Governor. Rather it argued for the reasonable use of these extraordinary powers only in extraordinary situations.

SHOULD THE POWER TO PROMULGATE THE ORDINANCES BE REPEALED?

  1. The recent ‘The Epidemic Act 1897 (Amendment) Act Ordinance, 2020’, which includes the deadly Coronavirus disease of 2019, declared that attack on healthcare workers is a legal offense. This was done in light of recent news of violence against doctors, nurses, etc., that had been working against the COVID-19 pandemic.
  2. This was an emergency situation, when travel was not possible, social distancing was encouraged. It was not possible to hold a parliamentary session to enact a law.
  3. Similar situations of emergency can arise in the future, therefore by repealing the ordinance-making powers, it will be very difficult for the executive to take any action beyond the given legal provisions.

Rather than repealing, the executive should use these powers reasonably, as observed by Justice Bhagwati in DC Wadhwa Case.

“The power to make an ordinance is to meet an extraordinary situation and it should not be made to meet the political ends of an individual. Though it is contrary to the democratic norm (separation of power) for an executive to make a law, this power is given to the President to meet emergencies so it should be limited at some point in time.”

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