Resorting to ordinances has always raised concern about the violation of the spirit of separation of power doctrine. While noting the rationales justifying the power to promulgate, analyse whether the decision of the Supreme Court on the issue has further facilitated resorting to this power. Should the power to promulgate the ordinances be repealed?
Introduction
Ordinance power (Art. 123/213) enables executive legislation during legislative recess for exigencies, but often raises concerns about violating separation of powers.
Body
Rationales for Ordinance Power
- Necessity for emergencies and unforeseen situations.
- Filling legislative vacuum when Parliament/State Legislature is not in session.
- Meeting urgent policy needs that cannot await legislative approval.
Ordinances and Separation of Powers
Executive encroachment on the legislative domain undermines parliamentary supremacy and the spirit of separation of powers.
Supreme Court's Impact
Judgments like D.C. Wadhwa (1987) allowed judicial review. However, re-promulgation continued. Krishna Kumar Singh (2017) declared re-promulgation without legislative consideration unconstitutional, calling it a "fraud on the Constitution," thereby significantly restricting executive misuse.
Should Ordinance Power be Repealed?
Arguments against repeal cite emergency necessity; arguments for highlight potential abuse and bypassing democratic scrutiny. A balanced approach emphasizes strict constitutional adherence.
Conclusion
Balancing executive necessity with legislative supremacy requires strict adherence to constitutional limits on ordinance power.
149 words · target ~150
The directive 'analyse' requires breaking down the issue into its components, examining relationships, and offering a reasoned judgment or interpretation.
Suggested structure
Introduction: Ordinance power and separation of powers concern
Rationales justifying the power to promulgate ordinances
Ordinances and the violation of separation of powers
Analysis of Supreme Court's decisions and their impact on ordinance power
Arguments for and against repealing the ordinance power
Conclusion: Balancing necessity with constitutional propriety
Key points
Ordinance power (Art. 123/213) allows the Executive to legislate when the legislature is not in session, intended for unforeseen exigencies.
Concerns arise from the Executive encroaching on the legislative domain, undermining parliamentary supremacy and the spirit of separation of powers.
Rationales include addressing emergencies, legislative vacuum, and urgent policy needs that cannot await legislative session.
Supreme Court judgments (e.g., D.C. Wadhwa, Krishna Kumar Singh) have established judicial review of the President's/Governor's satisfaction and declared re-promulgation of ordinances without legislative consideration unconstitutional.
While early judicial interventions aimed to curb misuse, the persistence of re-promulgation for decades indicated that the executive continued to resort to this power. However, the landmark Krishna Kumar Singh judgment (2017) significantly restricted the power, making re-promulgation a 'fraud on the Constitution'.
Repealing the power is debated: arguments against repeal cite its necessity for emergencies, while arguments for repeal highlight its potential for abuse and undermining democratic processes; a balanced approach emphasizes strict adherence to constitutional limits.
Common mistakes
Failing to address all three parts of the question: rationales, SC's impact, and repeal.
Not providing specific Supreme Court judgments (e.g., D.C. Wadhwa, Krishna Kumar Singh) to substantiate the analysis.
Taking an extreme stance on repealing the power without a balanced discussion of its utility and potential for misuse.
Superficial analysis of whether SC decisions 'facilitated' the power, instead of detailing the evolution of judicial scrutiny and its ultimate restrictive impact.
Difficulty: Medium — The question requires knowledge of constitutional provisions (ordinance power), understanding of a core constitutional doctrine (separation of powers), recall and analysis of specific Supreme Court judgments, and the ability to critically evaluate a policy question (repeal). The nuanced phrasing 'further facilitated' demands careful analytical skill.