Roadmap for Answer Writing
1. Introduction
- Definition of Ordinances: Explain what ordinances are and the constitutional provisions under which they can be promulgated (Article 123 for the President and Article 213 for Governors).
- Context of Separation of Powers: Briefly introduce the concept of the separation of powers and its significance in governance.
2. Body
A. Rationales Justifying the Power to Promulgate Ordinances
- Emergency Situations
- Fact: Ordinances allow immediate legislative action when urgent matters arise (Sharma, 2019).
- Explanation: Discuss the necessity of quick responses in crises.
- Maintaining Public Order and Safety
- Fact: Ordinances can be issued to ensure public safety and protect citizens’ rights (Kumar, 2020).
- Explanation: Analyze situations where immediate action is essential for public welfare.
- Expedited Lawmaking
- Fact: This power helps bypass lengthy legislative processes, ensuring prompt enactment of laws (Verma, 2021).
- Explanation: Discuss the efficiency gained through this mechanism.
B. Supreme Court’s Decisions on the Issue
- AK Roy vs Union of India (1982)
- Fact: The Supreme Court upheld the constitutionality of ordinances, noting that the President’s satisfaction is subject to judicial review (Mishra, 2018).
- Explanation: Explore how this ruling supports the ordinance power while enforcing accountability.
- DC Wadhwa vs State of Bihar (1987)
- Fact: The court criticized the excessive use of ordinances, stating it contravenes the constitutional framework (Mehta, 2019).
- Explanation: Analyze the implications for future ordinance use.
- KR Lakshmanan vs State of Tamil Nadu (1996)
- Fact: Reiterated that ordinances should only be promulgated in urgent situations (Singh, 2020).
- Explanation: Discuss how this sets a standard for ordinance issuance.
- Krishna Kumar Singh vs State of Bihar (2017)
- Fact: The ruling declared that repromulgation of ordinances is a “fraud on the Constitution” (Rao, 2021).
- Explanation: Highlight how this ruling acts as a safeguard against misuse.
C. Should the Power to Promulgate Ordinances be Repealed?
- Arguments for Repeal
- Fact: Concerns about the misuse of ordinances undermining legislative authority (Verma, 2021).
- Explanation: Discuss potential risks of continued ordinance power.
- Arguments Against Repeal
- Fact: Eliminating this power may hinder the ability to respond effectively to emergencies (Kumar, 2020).
- Explanation: Emphasize the need for this mechanism in urgent situations.
3. Conclusion
- Summary: Recap the justifications for ordinances, the Supreme Court’s role in regulating their use, and the arguments for and against repealing the power.
- Future Recommendations: Suggest strengthening existing checks and balances rather than outright repeal to ensure responsible use.
Analysis of Ordinance Power and Supreme Court Decisions
Introduction The power to promulgate ordinances, vested in the President or Governors, allows for legislation to be enacted without parliamentary approval in urgent situations. However, this power has raised concerns about potential violations of the separation of powers doctrine.
Rationales for Ordinances
Supreme Court Decisions
Should the Power Be Repealed?
Conclusion While the power to promulgate ordinances is justified in emergencies, the Supreme Court’s decisions highlight the importance of using this power judiciously and not as a substitute for regular legislative processes. Repealing the power entirely might not be advisable, but strict guidelines and checks should be implemented to prevent misuse and ensure adherence to the separation of powers doctrine.
Model Answer
Introduction
The power to promulgate ordinances, granted to the President under Article 123 and to Governors under Article 213 of the Indian Constitution, allows for immediate legislative action in the absence of Parliament or state legislature sessions. However, this power raises concerns about violating the separation of powers doctrine, which delineates the functions of the legislature, executive, and judiciary.
Rationales Justifying the Power to Promulgate Ordinances
Supreme Court’s Decisions on the Issue
While the Supreme Court has upheld the power, its decisions reinforce the need for judicious exercise, acting as a check on arbitrary use rather than facilitating it.
Should the Power to Promulgate Ordinances be Repealed?
Repealing the ordinance power would eliminate a critical tool for addressing urgent situations. Instead, it is vital to ensure responsible use within constitutional limits. Strengthening checks through judicial review and legislative oversight can mitigate misuse while preserving the power’s necessity in exceptional cases.
Conclusion
The ordinance power must be exercised judiciously to uphold the spirit of separation of powers. Rather than repeal, enhancing existing checks and balances can ensure responsible use in the nation’s interest.