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 Should the power to promulgate the ordinances be repealed?

The Constitution of India, under Article 123 (for the President) and Article 213 (for the Governor), grants the executive the power to promulgate ordinances when the legislature is not in session. While this temporarily merges legislative and executive functions, creating friction with the doctrine of separation of powers, it was incorporated by the framers as an exceptional mechanism rather than a parallel law-making process.

Rationales Justifying the Power to Promulgate Ordinances During the Constituent Assembly debates, Dr. B.R. Ambedkar justified this provision as a necessary tool to deal with unforeseen emergencies. The primary rationales include:

• Tackling Unforeseen Emergencies: To enable immediate executive action during crises (e.g., economic instability, sudden security threats, or public health emergencies) when the legislature is not in session.
• Legislative Time Constraints: The Parliament and State Assemblies do not sit continuously throughout the year. The ordinance route ensures a governance vacuum does not emerge during the recess.
• Public Interest and Welfare: To quickly amend existing anomalies in laws or implement urgent welfare measures that cannot wait for the lengthy parliamentary law-making process.

Have Supreme Court Decisions Facilitated the Resort to this Power? The Supreme Court’s jurisprudence on ordinances has been a complex evolution. While the Court has largely attempted to curb misuse, certain judicial postures have inadvertently provided leeway to the executive, leading to concerns of facilitation:

• Instances of Perceived Facilitation:
  • Reluctance in Judicial Review: In early cases, the judiciary maintained a cautious approach. In A.K. Roy v. Union of India (1982), the Supreme Court held that the President’s subjective satisfaction in promulgating an ordinance is not entirely immune from judicial review, but set a very high bar for proving mala fide intent.
  • Creation of 'Faits Accomplis': The Court has historically hesitated to issue immediate stays on ordinances. This allows the executive to implement policies and create irreversible rights or liabilities before the legislature even convenes to scrutinize the ordinance.
• Judicial Restriction and Regulation (The Counter-View):
  • Despite the above, the Supreme Court has fundamentally acted to restrict rather than facilitate "Ordinance Raj."
  • D.C. Wadhwa v. State of Bihar (1987): The Court categorically struck down the practice of re-promulgating ordinances without placing them before the legislature, terming it a "fraud on the Constitution" and a subversion of the democratic process.
  • Krishna Kumar Singh v. State of Bihar (2017): A seven-judge bench ruled that the satisfaction of the President/Governor is subject to judicial review. Crucially, it ruled that an ordinance does not automatically create enduring rights that survive its expiration, thereby neutralizing the executive’s incentive to bypass the legislature.

Therefore, while the executive has occasionally exploited the high threshold for proving mala fides, the Supreme Court’s overarching trajectory has been to tighten the noose around executive overreach, not facilitate it.

Should the Power to Promulgate Ordinances be Repealed?

Arguments for Repeal:

• Subversion of Democratic Accountability: It bypasses parliamentary debate, scrutiny by committees, and the voice of the opposition.
• Frequent Misuse: Ordinances are often used to push controversial legislation or avoid legislative gridlock, blatantly violating the spirit of the separation of powers (e.g., frequent re-promulgation of the Land Acquisition Ordinance).
• Global Precedents: Major democracies like the USA and the UK do not have parallel ordinance-making powers for the executive, relying instead on recalling the legislature for emergency sessions.

Arguments Against Repeal (Why it should be retained):

• Geopolitical and Domestic Realities: India’s vastness, diverse challenges, and susceptibility to sudden crises (as seen during the COVID-19 pandemic, where the Epidemic Diseases Act was urgently amended via ordinance) require a swift executive response mechanism.
• Practical Constraints: Convening Parliament requires a 14-day notice. In situations demanding overnight legal backing, recalling Parliament is logistically impractical.
• In-built Constitutional Safeguards: An ordinance has a limited lifespan (maximum 6 months and 6 weeks) and must ultimately be ratified by the legislature, preserving the ultimate supremacy of Parliament.

Conclusion and Way Forward Repealing the ordinance-making power would be an extreme measure that strips the state of its agility during genuine crises. The power is a "necessary evil." Instead of a repeal, the focus should be on establishing stronger institutional safeguards:

1. Mandatory Justification: The executive should be required to table a detailed statement explaining the specific circumstances that rendered immediate promulgation necessary, as suggested by parliamentary rules.
2. Codifying Judicial Precedents: The principles of the D.C. Wadhwa and Krishna Kumar Singh judgments should be codified into a constitutional amendment to explicitly ban the re-promulgation of ordinances.
3. Enhanced Parliamentary Oversight: Increasing the number of mandatory sitting days for the Parliament and State Legislatures would naturally reduce the temporal window available for the executive to rule by ordinance.

By strengthening parliamentary culture and judicial vigilance, the constitutional balance can be maintained without eliminating a vital emergency tool.