Answer: 

Introduction:

The power to promulgate ordinances is provided to the President of India under Article 123 and to the Governors of states under Article 213 of the Indian Constitution. This provision allows for the enactment of laws when the Parliament or the state legislature is not in session, and immediate legislative action is required. However, resorting to ordinances has often raised concerns about violating the spirit of the separation of powers doctrine, which emphasizes the distinct roles of the legislature, executive, and judiciary.

Body:

Rationales justifying the power to promulgate ordinances:

• Emergency situations: The power to promulgate ordinances is necessary when immediate legislative action is required to address urgent matters or emergencies, and the Parliament or state legislature is not in session.
• Maintaining public order and interest: Ordinances can be promulgated to maintain public order, ensure public safety, or protect the rights and interests of citizens in the absence of legislative action.
• Expedited lawmaking: Ordinances provide a mechanism to bypass lengthy legislative processes and ensure that necessary laws are enacted promptly.

Supreme Court’s decisions on the issue:

• In the case of AK Roy vs Union of India (1982), the Supreme Court upheld the constitutionality of the power to promulgate ordinances and observed that the President’s satisfaction is subject to judicial review.
• In the case of DC Wadhwa vs State of Bihar (1987), the Supreme Court criticized the excessive use of ordinances, stating that it is against the constitutional scheme and should only be used in exceptional circumstances.
• In the case of KR Lakshmanan vs State of Tamil Nadu (1996), the Supreme Court reiterated that ordinances should be promulgated only when urgent and immediate action is required.
• In the case of Krishna Kumar Singh vs State of Bihar (2017), the Supreme Court ruled that repromulgation of ordinances is a fraud on the Constitution, and the reasons for promulgating an ordinance must be placed before the legislature.

While the Supreme Court has upheld the constitutionality of the power to promulgate ordinances, it has consistently emphasized that this power should be exercised judiciously and only in exceptional circumstances. The court’s decisions have acted as a check on the arbitrary use of this power, rather than facilitating its abuse.

Repealing the power to promulgate ordinances would eliminate a crucial instrument to address urgent and unforeseen situations. Instead of repealing the power, it is essential to ensure that it is exercised responsibly and within the constitutional framework. Strengthening the checks and balances through judicial review and legislative oversight can help prevent the misuse of this power while preserving its necessity in exceptional circumstances.

Conclusion:

It is crucial to exercise this power judiciously and within the boundaries set by the Constitution to maintain the spirit of separation of powers. Rather than repealing the power, strengthening the existing checks and balances through judicial review and legislative oversight can ensure that the power is used responsibly and in the best interests of the nation.

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