Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed?
(UPSC 2015, 13 Marks, )
Introduction
The power to promulgate ordinances in India has always been a subject of concern due to its potential violation of the spirit of the separation of powers doctrine. While there are justifications for this power, it is important to analyze whether the decisions of the Supreme Court have further facilitated resorting to this power.
Explanation
Rationales justifying the power to promulgate ordinances
- Urgency and Immediate Action: Ordinances provide a mechanism for the executive to respond promptly to emergent situations and address issues requiring immediate attention.
- Flexibility in Legislation: The power to promulgate ordinances allows the government to enact laws without waiting for the regular legislative process, which can be time-consuming.
- Parliamentary Recess: During parliamentary recess when the legislature is not in session, ordinances ensure that the government can still make laws to tackle pressing matters.
- Avoidance of Bureaucratic Delays: Ordinances circumvent potential delays caused by the lengthy legislative procedures, helping in efficient governance.
- Crisis Management: In situations of crisis or emergencies, the government can swiftly respond through ordinances, preventing delays that could exacerbate the problem.
- Specialized Knowledge: The executive may possess specialized knowledge and expertise to address certain issues, and ordinances allow them to enact laws based on their insights.
- Relevance to Concurrent List Subjects: Ordinances are particularly useful when dealing with subjects in the concurrent list where both the center and states have legislative competence, avoiding conflicts.
- Temporary Nature: Ordinances are temporary in nature and require approval from the legislature to become permanent, ensuring a check on executive power.
Thinkers' Views
- Dr. B.R. Ambedkar: He emphasized that the ordinance-making power is an extraordinary measure and should be used only in extraordinary situations, not as a regular legislative mechanism.
- N.A. Palkhivala: Palkhivala critiqued the misuse of ordinances, arguing that it undermines the democratic process by bypassing parliamentary debate and scrutiny.
- Justice V.R. Krishna Iyer: He observed that the ordinance-making power should be exercised with great caution, as it reflects a balance between executive urgency and legislative authority.
Analysis of Supreme Court decisions on resorting to this power
- Judicial Review: The Supreme Court has upheld its power of judicial review, ensuring that ordinances are subject to constitutional scrutiny to prevent misuse.
- Constitutional Limitations: Court decisions have emphasized that the power to issue ordinances is not absolute, and it must be exercised within the constitutional framework and limitations.
- Principles of Necessity: Supreme Court decisions have recognized the need for ordinances in exceptional circumstances but have stressed that they should not become a substitute for regular legislation.
- Prohibition on Re-promulgation: The Court has discouraged the re-promulgation of ordinances, ensuring that the executive does not bypass the legislature repeatedly through the same ordinance.
- Judicial Activism: Instances of judicial activism have led to increased scrutiny of ordinances, ensuring that they conform to constitutional principles and do not violate the spirit of separation of powers.
- Protection of Fundamental Rights: The Supreme Court has consistently affirmed its role in safeguarding fundamental rights, ensuring that ordinances do not infringe upon the constitutional rights of citizens.
- Encouraging Legislative Accountability: The Supreme Court decisions have encouraged parliamentary accountability by emphasizing the temporary nature of ordinances and the necessity of obtaining legislative approval.
Should the power to promulgate ordinances be repealed
- Retaining the power:
o The power to promulgate ordinances serves as a necessary tool for the executive to respond to emergencies and urgent matters.
o It allows for quick decision-making and action when the legislative process may be time-consuming.
- Repealing the power:
o Repealing the power to promulgate ordinances would strengthen the separation of powers doctrine and prevent potential abuse of executive authority.
o It would ensure that all legislation goes through the proper legislative process, allowing for more comprehensive debate and public participation.
- Way Forward: Balancing approach
o Instead of repealing the power entirely, there could be stricter guidelines and limitations on the use of ordinances.
o This would strike a balance between the need for swift action and the preservation of the separation of powers doctrine.
o Strengthening the legislative process by making it more efficient and responsive could reduce the need for resorting to ordinances.
o This could involve streamlining procedures, enhancing parliamentary scrutiny, and encouraging proactive lawmaking.
o Considering a constitutional amendment to clearly define the circumstances and limitations under which ordinances can be promulgated.
o This would provide a more robust legal framework and prevent any ambiguity or misuse of the power.