Repromulgation of ordinances is a "fraud" on the Constitution and a sub-version of democratic legislative processes. Explain
As observed by the Supreme Court, re-promulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, especially when the government persistently avoids placing the ordinances before the legislature.
Law making powers
- Article 123 of the Constitution grants the President certain law-making powers to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.
- Likewise, the Governor of a state can issue ordinances under Article 213 of the Constitution, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
- Temporary law making power has been conferred on the President and the Governor under the Constitution of India to meet the unforeseen and extraordinary situations which require immediate action to which the ordinary law prevailing at that time cannot handle.
Misuse of ordinance
- At times there are instances that the legislature is being deliberately bypassed to avoid debate and deliberations on contentious legislative proposals. This is against the ethos and spirit of democracy.
- Ordinance can be promulgated only when the President is satisfied that circumstances exist for the same thus providing the scope of misuse of the power.
- When ordinances are frequently issued and re-issued, it violates the spirit of the Constitution and result in an ‘ordinance raj’. In D.C. Wadhwa vs State of Bihar 1987, the Supreme Court strongly condemned this practice and called it a constitutional fraud.
Thus, our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.
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