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 Should the power to promulgate ordinances be repealed?
Subtopic: Constitution & Polity · Ordinance-making power
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Detailed model answer
237 words · target 200 words · 14 min
Rationale
Articles 123 and 213 empower the President and Governors to promulgate ordinances when the legislature is not in session and circumstances require immediate action — a safety valve for legislative emergencies, sudden economic contingencies or legal vacuums, with the legislature retaining the power of disapproval after it reassembles.
The Supreme Court's trajectory
- A.K. Roy v Union of India (1982): an ordinance is "law" and subject to fundamental rights — but the Court showed wide deference to executive satisfaction.
- T. Venkata Reddy (1985): the motives behind promulgation were held non-justiciable — rulings that arguably facilitated easy resort to the power.
- D.C. Wadhwa (1987): Bihar's re-promulgation of 256 ordinances was condemned as a "fraud on the Constitution".
- Krishna Kumar Singh v State of Bihar (2017, seven-judge bench): re-promulgation subverts the legislative process; the satisfaction of the President or Governor is judicially reviewable for mala fides; laying the ordinance before the legislature is mandatory; ordinances create no enduring rights.
Early deference thus did ease executive recourse — visible in the land acquisition ordinance re-promulgated three times (2014–15) and the enemy property ordinance issued five times (2016) — but the 2017 verdict restored constitutional discipline.
Should the power be repealed?
No. Parliamentary recesses and genuine emergencies make the power necessary, and it remains subject to legislative control. The remedy is disciplined use: recording the circumstances necessitating urgency, a time-bound legislative vote, and judicial review on the Krishna Kumar Singh standard.
Conclusion
The ordinance power should survive as an exception — never as a parallel route of lawmaking.
What an examiner expects to see
- Articles 123 and 213 are emergency legislative safety valves, checked by the legislature's power of disapproval on reassembly.
- A.K. Roy (1982) and T. Venkata Reddy (1985) — deference and non-justiciability of motives — arguably facilitated executive resort to ordinances.
- D.C. Wadhwa (1987) branded Bihar's mass re-promulgation of 256 ordinances a 'fraud on the Constitution'.
- Krishna Kumar Singh (2017, seven judges): re-promulgation subverts democracy, satisfaction is judicially reviewable, laying before the legislature is mandatory, and ordinances confer no enduring rights.
- Evidence of misuse: the land acquisition ordinance re-promulgated three times (2014–15) and the enemy property ordinance issued five times (2016).
- Repeal is unwarranted — the power should be disciplined through recorded justification of urgency, time-bound legislative votes and judicial review.
Concrete cases, schemes and judgments
- D.C. Wadhwa v State of Bihar (1987) — 256 re-promulgated Bihar ordinances
- Krishna Kumar Singh v State of Bihar (2017) seven-judge verdict
- Land acquisition ordinance re-promulgated three times during 2014–15
- Enemy Property Ordinance promulgated five times in 2016
- A.K. Roy v Union of India (1982) treating an ordinance as 'law'