Explain the contingencies under which the president may promulgate ordinances. Does the use of ordinance making power subvert the democratic process?
The ordinance-making power of the president is the most important legislative power of the President. Article 123 of the constitution empowers the president to promulgate ordinances during the recess of Parliament. These ordinances have the same power and effect as an act of Parliament but are in the nature of temporary laws.
CONTINGENCIES UNDER WHICH PRESIDENT MAY PROMULGATE ORDINANCES
- He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session.
- An ordinance can only be issued when only one House is in session because a law can be passed by both the Houses and not only a single house alone. An ordinance made when both houses are in session is void.
- He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action. In Cooper’s case (1970), the Supreme Court held that the president’s satisfaction can be questioned in a court on the ground of malafide
- An ordinance can be issued only on those subjects on which parliament can make laws. It is subject to the same constitutional limitation as an act of Parliament.
Though it is debated whether ordinance making power of president subverts the democratic process or not, but it is clear that its misuse has happened many times.
However, though the ordinance is meant to be a powerful tool only to be used in the extraordinary situation, it has been used frequently to subvert the democratic process due to the following reasons-
- The reluctance to face the opposition by the ruling party.
- The lack of majority in the upper house and fear of losing on a specific bill.
- To counter the repeated and wilful disruption by the opposition parties and to counter the impasse in Parliament.
- It goes against the Separation of Powers as law making should be the work of the Legislature and not of the Executive.
- It gives the arbitrary power to the Executive
- It subverts the Debates and discussions in the Parliament, which is the pivot to the functioning of any democracy.
The Supreme Court in Krishna Kumar vs State of Bihar case (2017) said that the “failure to place a bill in front of the Parliament and repeated promulgation of the ordinance is abuse of power and fraud upon the Constitution”, also in DC Wadhwa case (1986) the Supreme Court ruled that repeated repromulgation of the ordinance with the same text without any attempt to get the bill passed by assembly the is unconstitutional and ultra vires the constitution.
Therefore, the Separation of Powers needs to be respected and unless an extraordinary situation demands- law making should only be the prerogative of the legislature. The Executive must show self-restraint and use certain accountability mechanisms instead. The spirit of the Constitution must be upheld, and legislative scrutiny must not be evaded unless an extraordinary and immediate situation demands.