The ordinance is an emergency provision, through which the executive can make laws when the parliament is not in session. Indian constitution under the articles 123 and 213 makes provision for an ordinance making power of union and the states respectively.
Ordinance-making power is an exceptional provision with the executive to respond to unforeseen circumstances. However, it has been criticized on the following grounds:
- The time-taking process of Lawmaking was made to ensure proper scrutiny before the finalization of the law. It’s necessary to invite diverse views from all sections present in both the houses for a diverse country like India.
- In the lack of sufficient discussion and deliberation in the legislature, there remains a fear that unsuitable provisions may get implemented.
- It is used to bypass the legislature. This can be seen as ordinances are promulgated again and again.
- The role of the legislature in parliamentary democracy is to act as an effective check on the executive and make it accountable. Legislation through an ordinance bypasses this principle of “Checks and Balances”.
- The Ordinance route is preferred by the executive at the expense of building consensus in the legislature.
- The ordinance route flouts not just the three pillars of parliamentary democracy, that’s discussion, debate, and deliberation but also poses a precedent for further flouting by the future executive.
In this context, Supreme Court has made several observations:
- SC in DC Wadhwa case has given provisions for ordinance guidelines. Court held that re-promulgation of ordinances with the same text, without giving any chance to the house to pass it, would amount to a violation of the constitution, thus these ordinances can be struck down.
- The court also held that power given to the President to deal with extraordinary situations can not be used as a substitute for the legislative power of the Parliament.
- Recently, in Krishna Kumar Singh vs State of Bihar, the SC has held that re-promulgation of the ordinance is a fraud on the constitution and placing the ordinance before the legislature is a mandatory constitutional obligation.
Thus, ordinance-making power is an exceptional power and must be used in exceptional circumstances. Frequent invocation corrodes the quality of parliamentary democracy and questions its legitimacy.