The frequent use of ordinances under Article 123 has sparked debates about executive overreach and democratic governance, with over 750 ordinances promulgated since independence.

Rationale for Ordinance-Making Power

• Emergency Legislation: Enables immediate response to urgent situations when Parliament is not in session

  • COVID-19 ordinances for economic relief and healthcare measures
  • Natural disaster management requiring swift legal framework
  • Financial crisis interventions like banking ordinances during 2008 recession
  • Border security measures during military tensions
  • Public health emergencies requiring rapid regulatory changes

• Constitutional Safeguards: Built-in democratic oversight mechanisms

  • Six-week parliamentary approval requirement after reassembly
  • Automatic lapse if not approved by both Houses
  • Presidential discretion acts as constitutional check
  • Judicial review available for constitutional violations
  • Cannot alter fundamental structure of Constitution

Violation of Separation of Powers

• Legislative Bypass: Executive usurps Parliament's primary law-making function

  • Farm Laws Ordinance 2020 avoided parliamentary debate
  • Land acquisition ordinances bypassed state consultations
  • Labor code ordinances implemented without stakeholder discussions
  • Banking regulation changes through ordinances rather than bills
  • Criminal law amendments via ordinances affecting fundamental rights

• Democratic Deficit: Reduces public participation and transparency

  • No committee scrutiny or expert consultations
  • Limited media debate and civil society engagement
  • Opposition parties excluded from decision-making process
  • Regional parties' concerns overlooked in federal matters
  • Lack of pre-legislative consultation mechanisms

Supreme Court's Jurisprudential Evolution

• Judicial Restraint: Court's reluctance to examine "immediate necessity" has indirectly encouraged frequent use
• Limited Review: Focus on procedural compliance rather than substantive necessity
• Constitutional Interpretation: Broad reading of executive powers during emergencies

Should Ordinance Power be Repealed?

Arguments for Retention:

• Crisis Management: Essential for handling emergencies like Pulwama attack response or economic stimulus during lockdown
• Administrative Continuity: Prevents governance paralysis during parliamentary recesses
• Federal Flexibility: Allows center-state coordination during urgent situations
• Constitutional Design: Framers included it considering India's diverse challenges
• International Practice: Similar powers exist in other democracies like France and Germany

Arguments for Repeal/Restriction:

• Technology Solutions: Modern communication enables rapid Parliament assembly
• Democratic Erosion: 146 ordinances under current government suggests overuse
• Alternative Mechanisms: Emergency sessions and standing committees can handle urgent matters
• Accountability Deficit: Limited post-promulgation scrutiny and debate
• International Standards: Many democracies function without such extensive ordinance powers

The ordinance power requires constitutional reform rather than complete repeal - establishing stricter "immediate necessity" criteria, mandatory parliamentary ratification timelines, and enhanced judicial review. The 42nd Constitutional Amendment Committee's recommendations for legislative oversight mechanisms remain relevant for strengthening democratic governance while preserving crisis response capabilities.