Introduction to Ordinance Making Power
The Indian Constitution, often hailed as a living document, has provided for a complex and flexible framework of governance. One of the unique aspects of this framework is the power of the Executive to issue ordinances. This ordinance-making power allows the Executive to take immediate legislative action when Parliament or a state legislature is not in session. While this power serves as a crucial tool for governance, it also raises important questions about the balance of power between the Executive and the Legislature.
In this blog post, we will explore the ordinance-making power under the Indian Constitution, its significance, the constitutional provisions that govern it, the checks and balances in place, and its implications for India’s democratic process.
Table of Contents
1. What is Ordinance-Making Power?
Ordinance-making power refers to the authority granted to the President of India (at the Union level) and the Governor of a state (at the state level) to promulgate ordinances when the Parliament or the state legislature is not in session. Ordinances are temporary laws that have the same force and effect as acts passed by the Legislature. However, since ordinances are issued by the Executive, they must be ratified by the Legislature within a specified period to become permanent laws.
Why Is It Important?
The ordinance-making power is significant because it allows the Executive to respond swiftly to urgent situations that require immediate legislative action. This power ensures that governance does not come to a standstill simply because the Legislature is not in session. However, the use of this power also needs to be balanced with the principles of democracy and accountability, as it allows the Executive to bypass the regular legislative process.
2. Constitutional Provisions Governing Ordinance-Making Power
The ordinance-making power is explicitly provided for in the Indian Constitution under two key articles:
2.1 Article 123: Presidential Ordinances
Article 123 of the Indian Constitution grants the President of India the power to promulgate ordinances. The key provisions of Article 123 are as follows:
- Article 123(1): If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.
- Article 123(2): An ordinance issued under Article 123 shall have the same force and effect as an act of Parliament, but it must be laid before both Houses of Parliament when they reassemble. The ordinance will cease to operate at the expiration of six weeks from the reassembly of Parliament unless it is disapproved by either House before that period.
2.2 Article 213: Governor’s Ordinances
Article 213 provides a similar ordinance-making power to the Governor of a state. The provisions are largely analogous to those under Article 123, with the Governor exercising this power when the state legislature is not in session. Like presidential ordinances, gubernatorial ordinances must be ratified by the state legislature within six weeks of reassembly.
Key Features of Ordinance-Making Power
- Temporary Nature: Ordinances are temporary laws and must be ratified by the Legislature to remain in effect.
- Immediate Action: Ordinances allow for immediate legislative action in urgent situations.
- Judicial Review: The satisfaction of the President or Governor in issuing an ordinance is not immune from judicial review.
3. The Process of Promulgating Ordinances
The process of promulgating ordinances under the Indian Constitution involves several key steps:
3.1 Determining the Need for an Ordinance
The decision to issue an ordinance is generally made when there is a pressing need for legislation, and the Legislature is not in session. The President or Governor must be satisfied that the circumstances necessitate immediate action.
3.2 Drafting the Ordinance
Once the decision is made, the ordinance is drafted, typically by the concerned ministry or department, in consultation with legal experts. The draft ordinance is then sent to the President or Governor for approval.
3.3 Issuance and Publication
Upon approval, the ordinance is promulgated and comes into immediate effect. It is published in the official gazette to inform the public and the relevant authorities.
3.4 Laying Before the Legislature
The ordinance must be laid before the Legislature when it reassembles. The Legislature has the option to approve, disapprove, or let the ordinance lapse. If the ordinance is approved, it becomes a permanent law. If it is disapproved or allowed to lapse, it ceases to have effect.
4. Checks and Balances on the Ordinance-Making Power
While the ordinance-making power is a critical tool for the Executive, it is subject to several checks and balances to prevent misuse and ensure accountability.
4.1 Judicial Review
The judiciary has the power to review the ordinance-making process to ensure that it is not arbitrary or unconstitutional. Courts have the authority to examine whether the President’s or Governor’s satisfaction was based on relevant material and whether the ordinance was necessary in the circumstances.
Case Law Example: R.C. Cooper v. Union of India (1970)
In the case of R.C. Cooper v. Union of India, the Supreme Court held that the President’s satisfaction in promulgating an ordinance is subject to judicial review. The Court can examine whether there was a valid reason for issuing the ordinance and whether it was a bona fide exercise of power.
4.2 Legislative Control
The primary check on the ordinance-making power is the requirement that ordinances must be approved by the Legislature. This ensures that the Executive cannot bypass the Legislature permanently. If the Legislature disapproves of the ordinance or takes no action within six weeks of reassembly, the ordinance automatically lapses.
4.3 Public Scrutiny
Ordinances, like other laws, are subject to public scrutiny. Civil society, media, and the general public can voice their opinions on the necessity and fairness of an ordinance. This acts as an informal but powerful check on the Executive’s use of this power.
5. Implications of the Ordinance-Making Power
The ordinance-making power has significant implications for governance and the legislative process in India.
5.1 Balancing Urgency and Democracy
The ordinance-making power is designed to address urgent situations where immediate legislative action is required. However, the use of this power must be balanced with democratic principles. Excessive reliance on ordinances can undermine the role of the Legislature and the democratic process.
5.2 The Risk of Ordinance Raj
One of the criticisms of the ordinance-making power is the potential for “Ordinance Raj,” where the Executive overuses ordinances to bypass the Legislature. This can lead to a concentration of power in the Executive and weaken the checks and balances that are essential for a healthy democracy.
Historical Example: Ordinances in the 1980s
During the 1980s, there was a significant increase in the use of ordinances, leading to concerns about the Executive’s overreach. This period saw ordinances being re-promulgated multiple times without being presented to the Legislature, effectively bypassing the democratic process.
5.3 The Role of the Judiciary in Ensuring Accountability
The judiciary plays a crucial role in ensuring that the ordinance-making power is used responsibly. By exercising its power of judicial review, the courts can prevent the misuse of ordinances and ensure that they are issued only when genuinely necessary.
6. Conclusion: A Vital Yet Contested Power
The ordinance-making power under the Indian Constitution is a vital tool for governance, allowing the Executive to respond swiftly to urgent situations. However, it is also a contested power that requires careful use to maintain the balance between the Executive and the Legislature. The checks and balances provided by judicial review, legislative control, and public scrutiny are essential to prevent the misuse of this power and to uphold the democratic principles enshrined in the Constitution.
As India continues to navigate the complexities of governance, it is crucial to ensure that the ordinance-making power is exercised with transparency, accountability, and respect for the legislative process. By doing so, the country can uphold the rule of law while addressing the challenges of a dynamic and evolving society.
FAQs
1. What is the ordinance-making power under the Indian Constitution?
- The ordinance-making power allows the President of India and the Governor of a state to issue temporary laws called ordinances when the Parliament or state legislature is not in session.
2. Under which articles of the Indian Constitution is the ordinance-making power granted?
- The ordinance-making power is granted under Article 123 for the President of India and Article 213 for the Governor of a state.
3. How long does an ordinance remain in effect?
- An ordinance remains in effect for six weeks from the reassembly of the Parliament or state legislature unless it is approved or disapproved by the Legislature.
4. Can the judiciary review the issuance of an ordinance?
- Yes, the judiciary can review the issuance of an ordinance to ensure that it is not arbitrary or unconstitutional.
5. What are the risks associated with the overuse of the ordinance-making power?
- The overuse of the ordinance-making power can lead to “Ordinance Raj,” where the Executive bypasses the Legislature, undermining democratic principles and the system of checks and balances.
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