Q.Resorting to ordinances has always raised concern on violation of the spirit of separation of power doctrine. While noting the rationales justifying the power to promulgate, analyse whether the decision of the Supreme Court on the issue have further facilitated to resorting to this power. Should the power to promulgate the ordinances be repealed?

graph LR
    Need["Need for Ordinances"] --> UL["Urgency in Lawmaking"] --> IA["Immediate Action during Emergencies"]
    Need --> FG["Flexibility for Governance"] --> DU["Dealing with Unforeseen Situations"]
    Need --> TL["Tackling Legislative Deadlock"] --> BP["Bypassing Political Stalemates"]
    Need --> CM["Crisis Management"] --> MC["Managing Crises like Pandemics"]

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Rationale for the Power to Promulgate Ordinances

• Urgency in Lawmaking: Ordinances allow for immediate action when Parliament is not in session, addressing emergencies.
  • Example: COVID-19 relief ordinances like moratoriums on loans and health measures.
• Flexibility for Governance: Provides flexibility in governance by allowing the executive to deal with unforeseen situations.
  • Example: Farm Ordinances (2020) aimed at reforms before the next parliamentary session.
• Tackling Legislative Deadlock: Helps the government circumvent political deadlock in Parliament, ensuring essential decisions are not stalled.
  • Example: Land Acquisition Ordinance (2015) was used after the bill faced delays in Parliament.
• Crisis Management: Key for managing crises, such as natural disasters, pandemics, or economic emergencies.
  • Example: Ordinances issued during the 2008 global financial crisis for economic stabilization.

Supreme Court’s Stance on Ordinances

• D.C. Wadhwa Case (1987): Declared that repeated re-promulgation of ordinances is unconstitutional, as it bypasses the legislature.
• Krishna Kumar Singh Case (2017): Reasserted that ordinances cannot replace legislation, and the rights created by ordinances do not survive unless converted into law.
• Role in Limiting Abuse: Although the Supreme Court’s rulings sought to limit ordinance abuse, the absence of stringent enforcement means the executive continues to rely on ordinances frequently.
  • Example: Re-promulgation of ordinances like the Air Quality Commission Ordinance shows limited curtailment.
• Ordinances and Checks and Balances: The Court emphasized the temporary nature of ordinances and stressed that they must not bypass parliamentary processes.

Should the Power to Promulgate Ordinances Be Repealed?

• Essential for Emergencies: Ordinances are crucial for addressing urgent and unforeseen events, especially when Parliament is not in session.
  • Example: During the COVID-19 pandemic, ordinances helped enforce immediate economic measures.
• Better Regulation Rather Than Repeal: Instead of abolishing the power, there should be regulation and reform to prevent misuse, such as limiting the number of times an ordinance can be re-promulgated.
  • Example: Limiting re-promulgation to once per ordinance before mandatory legislation is required.
• Mandating Legislative Scrutiny: Parliament should establish permanent committees to scrutinize ordinances within a specific timeframe to ensure they are justified and necessary.
• Clear Grounds for Ordinances: Introduce criteria for when ordinances can be issued, ensuring they are used only for genuine emergencies or urgent matters.
• Increasing Transparency: The executive must provide clear reasons for the promulgation of ordinances and ensure public disclosure to maintain transparency.
• Improved Enforcement by Judiciary: The judiciary could develop a monitoring mechanism to ensure compliance with the constitutional requirement that ordinances are placed before the legislature and converted into laws in a timely manner.
• International Best Practices: Learn from other democracies, where ordinances or executive decrees are issued with clear parliamentary oversight.
  • Example: In France, executive decrees must be ratified by Parliament within a specified time frame to become permanent.