Q5. Resorting to ordinances has always raised concern about the violation of the spirit of separation of power doctrine. While noting the rationales justifying the power to promulgate, analyse whether the decision of the Supreme Court on the issue has further facilitated resorting to this power. Should the power to promulgate the ordinances be repealed? 

Model Answer:

Introduction

The Indian Constitution mandates the separation of powers among the executive, legislature, and judiciary to maintain checks and balances, but the power to promulgate ordinances often tests this equilibrium.  

Body

Rationales Justifying Ordinance Power

1. Emergencies and Urgency: Ordinances provide an immediate solution during crises when Parliament is not in session, allowing the executive to address pressing issues effectively.
2. Continuity of Governance: In situations where legislative deliberation is delayed, ordinances ensure governance continues without significant disruption, safeguarding the national interest.
3. Flexibility in Governance: Ordinances offer flexibility to the executive, allowing it to respond dynamically to unforeseen circumstances requiring swift policy interventions.
4. Regional and Political Dynamics: Political stalemates or differing regional interests may impede legislation, making ordinances a tool to overcome such deadlocks temporarily.
5. Short-term Solutions: Ordinances allow the government to implement temporary measures while awaiting full legislative scrutiny and approval when Parliament reconvenes.

Supreme Court's Decisions Impacting Ordinance Use

1. R.C. Cooper Case (1970): The Court emphasized that ordinances must meet constitutional checks and cannot bypass legislative scrutiny, reaffirming the balance of powers.
2. D.C. Wadhwa Case (1987): The Court condemned the re-promulgation of ordinances as unconstitutional, setting limits on executive overreach and ensuring ordinances are not used arbitrarily.
3. Krishna Kumar Singh Case (2017): The judgment reinforced that ordinances cannot have permanent effect unless legislatively endorsed, thus emphasizing their temporary nature.
4. Accountability of Executive: By highlighting judicial review of ordinances, the Court has emphasized executive accountability, reinforcing constitutional propriety.
5. Facilitating Ordinances?: Despite judicial safeguards, the lack of stringent enforcement has enabled governments to continue resorting to ordinances in contentious situations.

Should Ordinance Power be Repealed?

1. Essential for Emergencies: Repealing ordinance power could impair governance during crises, where legislative processes are inherently slower.
2. Checks and Accountability: Strengthening legislative oversight rather than repeal can ensure ordinances are used responsibly without undermining parliamentary authority.
3. Preserving Flexibility: Ordinances are essential for urgent policy responses, especially in critical sectors like national security or public health.
4. Limited Use, Not Abolishment: Tightening constitutional restrictions on the misuse of ordinances is a better alternative to outright repeal, preserving their utility for genuine needs.
5. Democratic Processes: Ensuring ordinances are sparingly used respects the democratic legislative process, but a complete repeal may unnecessarily limit executive action in times of urgency.

Conclusion

‍The power to promulgate ordinances remains vital for governance in exceptional situations, but robust judicial and parliamentary checks are essential to prevent misuse and safeguard constitutional values. 

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