Law Optional 2024 Paper I solved

"The ordinance making power of the President and the Governors is a unique feature of the Indian Constitution but it balances on a razor-sharp edge between pragmatic governance and potential over-reach." Critically examine with the help of decided case laws.

Verified Answer

The ordinance-making power of the President (Article 123) and Governors (Article 213) is indeed a distinctive feature of the Indian Constitution, allowing the executive to promulgate laws when the legislature is not in session and urgent action is required. This power is designed to address unforeseen exigencies and ensure the continuity of governance. However, its exercise involves a delicate balance between the necessity of immediate action and the potential for executive overreach, which could undermine the legislative process and the principle of separation of powers.

Pragmatic Governance: This power enables the executive to respond swiftly to situations demanding immediate legal frameworks, such as natural disasters, economic crises, or security threats, without waiting for the legislature to convene. It ensures that the government can function effectively and implement policies crucial for public welfare and national interest, even during parliamentary recesses. For instance, during the COVID-19 pandemic, several ordinances were promulgated to address health emergencies and economic relief measures.

Potential Over-reach: The 'razor-sharp edge' refers to the risk that this power might be misused to bypass legislative scrutiny, debate, and democratic accountability. If ordinances are frequently promulgated or re-promulgated without sufficient justification, it can lead to a 'government by ordinance,' which is antithetical to parliamentary democracy. This circumvention can undermine the legislature's role as the primary law-making body and erode public trust in democratic institutions.

Critical Examination with Decided Case Laws: Indian courts have consistently intervened to define the boundaries of this power and prevent its abuse:

  1. R.C. Cooper v. Union of India (1970): This landmark case established that the President's satisfaction for promulgating an ordinance is not immune from judicial review. The Supreme Court held that the satisfaction must be based on objective facts and not merely on the subjective opinion of the executive. This ruling underscored that ordinances are subject to the same constitutional limitations as parliamentary laws.

  2. D.C. Wadhwa v. State of Bihar (1987): This case dealt with the alarming practice of re-promulgating ordinances without ever placing them before the legislature. The Supreme Court, led by Justice P.N. Bhagwati, strongly condemned this practice, calling it a 'fraud on the Constitution.' The Court observed that re-promulgation defeats the constitutional scheme, which mandates that an ordinance must be laid before the legislature and either passed into law or allowed to lapse. This judgment was crucial in curbing the executive's tendency to perpetuate ordinances indefinitely.

  3. Krishna Kumar Singh v. State of Bihar (2017): A seven-judge bench of the Supreme Court reaffirmed the principles laid down in D.C. Wadhwa. The Court held that re-promulgation of ordinances is unconstitutional and a 'subversion of the democratic legislative process.' It clarified that an ordinance, by its very nature, is a temporary measure and cannot be used as a substitute for regular legislation. The Court also reiterated that the President's/Governor's satisfaction is justiciable and can be challenged on grounds of mala fide intent, extraneous considerations, or non-application of mind. Furthermore, the Court emphasized that the failure to lay an ordinance before the legislature is a serious constitutional impropriety.

Conclusion: The ordinance-making power, while essential for responsive governance, is a potent tool that must be wielded with utmost caution and constitutional fidelity. The judiciary, through its pronouncements, has played a vital role in ensuring that this power remains within its intended constitutional bounds, preventing its transformation from a mechanism for pragmatic governance into an instrument of executive overreach. The balance between executive efficiency and legislative supremacy is a cornerstone of India's constitutional democracy, and judicial review acts as the ultimate guardian of this balance.