DMPQ: Ordinance making power is an emergency power but in Indian constitutional history this power has been surrounded with issues. Explain the issue involved with ordinance making power.

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Article 123 of the Constitution grants the President certain law-making powers to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.  Similarly power is given under article 213 to governor of states.

Issues associated with the ordinance making power:

Ordinance making power of the President or the Governor has various issues such as:

  • Deliberate bypassing of the legislature: At times there are instances that legislature is being deliberately bypassed to avoid debate and deliberations on contentious legislative proposals. This is against the ethos and spirit of democracy. Repromulgation of ordinances: As observed by the Supreme Court, re-promulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, especially when the government persistently avoids placing the ordinances before the legislature.
    • For example, a series of ordinances were issued by the Bihar Governor between 1989 and 1992 regarding the taking over of private Sanskrit schools by the state.
  • Infringement of principle of separation of powers: The power of the executive to issue ordinances goes against the principle of separation of powers as lawmaking is the domain of legislature.
  • The satisfaction of President: Ordinance can be promulgated only when the President is satisfied that circumstances exist for the same thus providing the scope of misuse of the power.

Since independence, numerous ordinances have been issued which clearly shows that this power has been used quite regularly instead of being the last resort.

 

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