- The President and Governor both are empowered to promulgate ordinances under the Article 123 and 213 of the constitution respectively. It is important to mention here that framers of our constitution envisaged ordinance making power in order to deal with unforeseen and urgent matters. But since independence this exclusive power had been misused many a times.
Positively used in following cases
There had been times when this power was used positively. The Telecom Regulatory Authority of India was created in 1997 first by an ordinance and later by an Act of Parliament. Recently the ordinance for e-auction of coal blocks cancelled by the Supreme Court, was an important and positive move in the direction of ensuring transparency and the raising energy demands of the nation.
In the view of both usage and misuses the ordinance making power is an important one to meet the emergency and adverse matters. But it should not be used by the executives as a replacement tool for law making power of the legislature just for mere political motives.
Criticisms
- The court had held that “it is contrary to all democratic norms that the Executive should have the power to make a law”.
- As per Article 123(2)(a), Ordinances are only temporary laws as they must be approved by Parliament within six weeks of reassembling or they shall cease to operate. However, governments have promulgated some ordinances multiple times. For example, The Securities Laws (Amendment) Ordinance, 2014 was recently repromulgated for the third time during the term of the 15th Lok Sabha. Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body.
- In the 1986 Supreme Court judgment in D.C. Wadhwa versus State of Bihar case, it said that “Ordinance Raj” cannot be permitted.
How to keep an eye on it ?
- art 123,213 comes under art 13(JR)
- Media,civil society.
Saurabh Baranwal 