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The Extensive Use of Ordinance Making Power of the Executive throughout India



For any layman, the discussion around the process of law-making and body which ideally deals with it becomes very convenient without any hesitance to grasp the underpinnings. However, it's not sunshine and rainbows for a law student to understand its complexities and it's overlapping nature when he enters into a law school. The Indian democracy, which is of Parliamentary form, follows the principle of 'Separation of Powers' or trias politica model, demarcating the limitations of exercisable power in the process of law-making between the Legislature, the Executive and the Judiciary. Primary law-making role in India is with its Legislative body, i.e. the Parliament through it's elected and nominated members, and the Judiciary is there to adjudicate on matters related to the constitutionality of any law passed by the Legislature. However, the role of the executive body is a bit more than just enforcing the laws enacted by the legislature. The Executive branch in Indian does have powers to enact laws by themselves through another means, i.e. Ordinances, in matters permissible under the Indian Constitution. So, let's understand how 'ordinances', is an exception and not the rule, functions and legitimizes itself parallel to the parliamentary legislations throughout India to such an extent that it is sometimes seen as overriding on legislative functioning. Ordinances are primarily just laws that are promulgated by the President of India, on the advice of the Council of Ministers when Lok Sabha and Rajya Sabha or either of those is not in session under circumstances where the President thinks it necessary to act in an emergency without waiting for houses to assemble. So, how exactly does the ordinance legitimize itself?

In a broad and collective sense, the Ordinances finds its legitimacy through the Executive organ of the government. The Executive department in India can be differentiated into two parts: Political & Non-Political. The Political Executives are the Ministers as heads of all ministries and non-Political Executives are the civil servants. And the only law-making process that the executive has is through the ordinances that the President, under Art-123, utilizes and also the Governor of the State under Art-213. An Ordinance may relate to any subject that the Parliament has the power to legislate on however, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists is to be maintained. Notwithstanding anything with the power of the President and Governor to make an ordinance, there lie several issues to counter in conformity with its partiality and non-parliamentary dictations. First, an ordinance is sometimes used as a tool to bypass the legislature to avoid parliamentary discussions and added legislative proposals, which sometimes looks appealing considering the 'always opposing' nature of the opposition in the parliament. However, that's not how democracy should work and ethos has tampered. That's the reason why the Hon'ble Supreme Court of India observed in matters related to the ordinances passed by Bihar's Governor between 1989 and1992 regarding the take over of private Sanskrit schools by the State that re-promulgation of ordinances is ultra vires to the constitutional values. Also, the Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that immediate action was not required and the ordinance had been issued only to bypass the parliamentary discussion in the legislature on the matter. Hence, there are judicial safeguards available on arbitrary ordinance promulgation by the President. Second, the endangered separation of power between the legislature and the executive as they come in direct confrontation with each other in matters of law-making. And taking the nature of politics in our country, such confrontations turn very ugly in no time with protests, riots and allegations of all sorts, eventually stopping parliament from functioning. The other issue with ordinance making is its utilization in 'public's demand'. We witnessed in 2019 when the central government cleared as many as five ordinances right before the election season and the model code of conduct became applicable thereafter. Not to forget the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 which was clearly more politically motivated than legislatively.

The bottom line is that the ordinance making power should not create any rift between the governing organs because its history is clearly indicating the turmoil it can create in a democracy. For example, between 1952 and 2014, there have been around 637 ordinances and 12 alone in 2020. The highest number of ordinances (99) was seen during the controversial reign of Indira Gandhi (1971-77), and we can guess the obvious reasons for sure. Despite both Articles 123 and 213determines the conditions to be fulfilled while issuing ordinances, they are rarely adhered to. Usage of tactics such as re-promulgation only further questions the fundamental legislative supremacy the parliament executes.

"Presidential powers are not exercised by a body or group. The Constitution vests 'all executive power' in one and only one person - the president." - William Barr
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