UPSC Mains Answer: 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 resort

Difficulty Level: Hard

Sub-category: Indian Polity and Constitution (Executive and Legislative Relations)

Introduction

The power to promulgate ordinances under Article 123 of the Indian Constitution empowers the President to legislate during parliamentary recesses. While intended as an emergency provision, its frequent use has sparked debates on the erosion of the separation of powers doctrine, a cornerstone of democratic governance.

Body

rationales_for_ordinances: Ordinances are justified in situations demanding immediate legislative action, such as natural disasters, financial crises, or public emergencies. They ensure governance continuity when Parliament is not in session, preventing administrative paralysis. Historically, ordinances have addressed urgent issues like land reforms (1950s) and economic policies (1990s).

Supreme court judgments

The Supreme Court, in cases like D.C. Wadhwa vs. State of Bihar (1987) and Krishna Kumar Singh vs. State of Bihar (2017), has upheld the constitutional validity of ordinances but imposed safeguards. The Court ruled that ordinances cannot be re-promulgated indefinitely, as it subverts parliamentary supremacy. However, judicial scrutiny has often been reactive, allowing governments to exploit loopholes, such as re-promulgation or delayed parliamentary approval.

Concerns and analysis

The doctrine of separation of powers is violated when ordinances bypass legislative deliberation, undermining democratic accountability. Frequent resort to ordinances reflects executive overreach, as seen in the re-promulgation of land acquisition ordinances (2014-15). While the Supreme Court’s rulings have curtailed misuse, they have not entirely deterred it. The judiciary’s role in balancing executive urgency with legislative primacy remains contentious.

Conclusion

While ordinances are a necessary tool for governance, their unchecked use corrodes constitutional principles. Strengthening parliamentary oversight, imposing stricter judicial review, and limiting re-promulgation could mitigate misuse. However, outright repeal is impractical, as emergencies demand swift action. Instead, reforms should focus on enhancing transparency and accountability to preserve the spirit of separation of powers.