Article 123 and Article 213 of Indian Constitution contains the ordinance making powers of the President and Governor respectively. It provides for promulgation of ordinance by the President or Governor, if he is satisfied, under exceptional circumstances, when both the houses are not in session. The vision of the framers of the Constitution was to provide a mechanism to prevent procedural lapse and temporary arrangements for hassle-free administration until the reassembly of the Parliament. However this provision has many a times become a tool to bypass the parliamentary consultation and deliberative process. The misuse is generally due to the following 3 reasons:
1.Reluctance to face the legislature on particular issues.
2.Fear of defeat in the Upper House where the government may lack the required numbers.
3.The need to overcome an impasse in the legislature caused by repeated and wilful disruption by a vociferous section of the Opposition.
The misuse so as to bypass the scrutiny of the legislature has been witnessed the following cases recently:
1.The incumbent govt. repromulgated the Land Acquisition ordinance thrice.
2.Enemy Property was repromulgated 4 times that sought to tighten the control of govt. over enemy property.
3.Coal Mines ordinance was promulgated twice.
Ordinance making is a legacy of GOI Act, 1935 which empowered the Governor General to overcome any barrier and promulgate orders that had the powers of legislative actions. The Supreme Court in D C Wadhwa vs. State of Bihar (1987), frowned upon the practice of re-promulgation of ordinances and observed “the executive cannot continue the provisions of the ordinance in force without going to the legislature”. The court in the said case had lampooned State of Bihar for “Ordinance Raj” in the state. The court held that repeated promulgation of ordinances was constitutionally impermissible and in fact a fraud on the Constitution.
Indeed, ordinances must be promulgated very sparingly only when “necessary”. Recent order of the Supreme Court that the satisfaction of the President while promulgating an ordinance comes under judicial review is a positive step so as to check its misuse and make democracy meaningful.