Polity
The
frequent promulgation of ordinances is detrimental for a constitutional
democracy.
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The ordinance-making
power within the Constitution isnt a necessary feature of the westminster type
of parliamentary democracy that india has adopted.
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It may be a relic of
the govt of india Act, 1935 that was even so retained by the Constituent
Assembly.
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Separation of powers
between the legislature, executive and Judiciary: In india, the central and
state legislatures are liable for law creating, the central and state
governments are responsible for the implementation of laws and also the
judiciary (Supreme Court, High Courts and lower courts) interprets these laws.
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However, there are many
overlaps within the functions and powers of the 3 institutions.
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For example, the
President has certain legislative and judicial functions and also the
legislature will delegate some of its functions to the manager within the kind
of subordinate legislation.
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Ordinance creating
powers of the President Article 123 of the Constitution grants the President
certain law making powers to promulgate Ordinances when either of the 2 homes
of Parliament isnt in session and thus its impossible to enact laws within
the Parliament.
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An Ordinance could
relate to any subject that the Parliament has the ability to pass law on.
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Conversely, its the
same limitations because the Parliament to legislate, given the distribution of
powers between the Union, State and coinciding Lists.
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Thus, the subsequent
limitations exist with consider to the Ordinance creating power of the
executive:
1. legislative assembly isnt in
session: The President will only promulgate an Ordinance once either of the 2
homes of Parliament isnt in session.
2. Immediate action is required:
The President cannot promulgate an Ordinance unless hes satisfied that there
are circumstances that need taking ‘immediate action’
3. Parliamentary approval during
session: Ordinances should be approved by Parliament within six weeks of
reassembling or they shall cease to control.
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They will cease to
control just in case resolutions unfavorable
the Ordinance are gone by each the homes.
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Figure one shows the
number of Ordinances that are promulgated in india since 1990.
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The largest number of
Ordinances was promulgated in 1993, and there has been a decline within the
range of Ordinance promulgated since then.
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However, the past year
has seen an increase within the number of Ordinances declare.
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Ordinance making powers
of the Governor even as the President of india is constitutionally mandated to
issue Ordinances under Article 123, the Governor of a state will issue
Ordinances under Article 213, once the state general assembly (or either of the
2 homes in states with bicameral legislatures) isnt in session.
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The powers of the
President and therefore the Governor are loosely comparable with regard to
Ordinance making.
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However, the Governor
cannot issue an Ordinance while not instructions from the President in 3 cases
wherever the assent of the President would are needed to pass the same Bill
vital Cases Supreme court cases Judgement RC Cooper vs.
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Union of india,1970 In
RC Cooper vs. Union of india (1970) the Supreme Court, whereas examining the
constitutionality of the Banking companies (Acquisition of Undertakings)
Ordinance, 1969 that sought to nationalise fourteen of India’s largest
industrial banks, held that the President’s decision may be challenged on the
grounds that ‘immediate action’ wasnt required; and also the Ordinance had
been passed primarily to by-pass debate and discussion within the legislative
assembly.
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38 Constitutional
Amendment Act, 1975 Inserted a new clause (4) in Article 123 stating that the
President’s satisfaction while promulgating an Ordinance was final and could
not be questioned in any court on any ground.
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44 Constitutional
Amendment Act,1977 Deleted clause (4) inserted by the 38 CAA and therefore
reopened the possibility for the judicial review of the President’s decision to
promulgate an Ordinance.
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AK Roy vs. Union of
india, 1980 In AK Roy vs. Union of india (1982) whereas examining the
constitutionality of the National Security Ordinance, 1980, that sought to
supply for preventive detention in bound cases, the Court argued that the
President’s Ordinance creating power isnt beyond the scope of judicial review.
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However, it didnt
explore the problem further as there was deficient proof before it and also the
Ordinance was replaced by an Act.
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It also pointed out the
requirement to exercise judicial review over the President’s decision only if
there have been substantial grounds to challenge the decision, and not at
“every casual and spending challenge”.
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T Venkata Reddy vs.
State of andhra pradesh, 1985 In T Venkata Reddy vs. State of andhra pradesh
(1985), whereas deliberating on the promulgation of the andhra pradesh
abolishment of Posts of Part-time Village Officers Ordinance, 1984 that
abolished certain village level posts, the Court reiterated that the Ordinance
creating power of the President and also the Governor was a legislative power,
comparable to the legislative power of the Parliament and state legislatures
respectively.
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This implies that the
motives behind the exercise of this power cant be questioned, even as is that
the case with legislation by the Parliament and state legislatures.
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DC Wadhwa vs. State of
bihar, 1987 t was argued in DC Wadhwa vs. State of bihar (1987) the legislative
power of the chief to promulgate Ordinances is to be used in exceptional
circumstances and not as a substitute for the law creating power of the
legislative assembly.
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Here, the court was
examining a case wherever a state government (under the authority of the
Governor) continuing to re-promulgate ordinances, that is, it repeatedly issued
new Ordinances to replace the old ones, rather than laying them before the state
legislative assembly.
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A total of 259
Ordinances were re-promulgated, some of them for as long as fourteen years.
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The Supreme Court
argued that if Ordinance creating was created a usual practice, making an
‘Ordinance raj’ the courts may strike down re-promulgated Ordinances.
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