Subject: Indian Polity

The practice of issuing ordinances under Article 123 has sparked debates about the delicate balance between executive necessity and legislative supremacy in India's constitutional democracy. The recent controversy over the Delhi Services Ordinance 2023 has reignited discussions on the appropriate use of this extraordinary power.

Rationale for Ordinance-Making Power

• Legislative Vacuum: Enables quick response during parliamentary recess to address urgent matters requiring immediate legislative action.
• Emergency Situations: Allows executive to deal with unforeseen circumstances demanding prompt legal intervention.
• Administrative Efficiency: Facilitates smooth governance when immediate legislative measures are necessary.

Supreme Court's Role and Impact

• The landmark judgment in Krishna Kumar Singh v. State of Bihar (2017) established:
  • Re-promulgation of ordinances is a fraud on the Constitution and subverts democratic legislative processes.
  • Ordinances must be placed before Parliament and cannot be repeatedly re-issued.
• However, recent judgments have:
  • Created ambiguity regarding the scope of ordinance-making power.
  • Failed to establish clear guidelines for determining "immediate action" requirement.
  • Not effectively addressed the issue of excessive use of ordinances.

Arguments for Repealing Ordinance Power

• Democratic Deficit: Bypasses parliamentary deliberation and scrutiny, undermining representative democracy.
• Executive Overreach: Can be misused as a parallel legislative mechanism by the executive.
• Constitutional Concerns: Violates the spirit of separation of powers and legislative supremacy.

Arguments Against Repealing

• Administrative Necessity: Essential tool for handling emergencies and unforeseen situations.
• Constitutional Safeguards: Already contains limitations like parliamentary approval requirement.
• Global Practice: Many democracies have similar provisions for executive legislation.

The debate over ordinance-making power requires balancing democratic principles with governance needs. Rather than complete repeal, reforms like strict judicial review, mandatory parliamentary scrutiny, and clear guidelines for usage could better serve constitutional objectives. The solution lies in strengthening institutional checks while preserving this essential tool for "legislative emergencies" as envisioned by the Constitution makers.