Resorting to ordinances has always raised concern on violation of the spirit of separation of powers…

Question

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 resorting to this power. Should the power to promulgate ordinances be repealed?

Ghissu Editorial · Accepted Answer

Supreme Court rulings first facilitated ordinances by treating the power as legislative, but later rulings curbed re-promulgation, so the power should be retained with safeguards rather than repealed. Krishna Kumar Singh (2017) made the President's satisfaction justiciable and laying before the legislature mandatory.

**Introduction**

Articles 123 and 213 let the executive legislate when the legislature is not in session. The Land Acquisition ordinance, issued in 2014 and re-promulgated twice in 2015, revived fears of bypassing Parliament.

**Rationale for the Ordinance Power**

1. **Urgency between sessions**: The Epidemic Diseases (Amendment) Ordinance 2020 protected health workers when Parliament could not meet.
2. **Economic emergencies**: The Taxation Laws (Amendment) Ordinance 2019 cut corporate tax at once to revive investment.
3. **Safeguards**: Ordinances lapse six weeks after reassembly, and the 44th Amendment (1978) removed the bar on reviewing the President's satisfaction.

**Have Supreme Court Rulings Facilitated Ordinances?**

SKETCH: timeline | Court and the Ordinance Power
- 1982 :: A.K. Roy: legislative power
- 1985 :: Venkata Reddy: motive immune
- 1987 :: D.C. Wadhwa: repromulgation fraud
- 2017 :: Krishna Kumar: satisfaction reviewable

1. **Facilitating**: A.K. Roy (1982) treated the power as legislative, and T. Venkata Reddy (1985) shielded ordinances from challenge on motive or necessity.
2. **Restraining**: D.C. Wadhwa (1987) called Bihar's 256 re-promulgated ordinances a fraud on the Constitution, and Krishna Kumar Singh (2017) made satisfaction justiciable and laying mandatory.
3. **Weak deterrence**: The Muslim Women ordinance was still issued in 2018 and re-promulgated twice in 2019, because the Court rarely tests urgency in practice.

**Should the Power Be Repealed?**

1. **Retain for emergencies**: Repeal would leave governments helpless in a crisis between sessions, as in 2020.
2. **Reform instead**: Limits on re-promulgation and prompt laying before the legislature would curb misuse.

**Conclusion**

The power should be retained but disciplined: judicial deference once encouraged it, while Wadhwa and Krishna Kumar Singh now restrain it. As an emergency bridge rather than a parallel route of law-making, it respects the separation of powers and parliamentary democracy.

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