08th January, 2016 (MAINS)


Q1. Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed? [12.5marks/2015/GS-2] 200 words.

Please write answer in the comments section.

  • DVM

    The framers of the constitution while framing the constitution debated fiercely on the Ordinance making power of the president, because as per the major section of constituent assembly it is undemocratic as well as it will create the parallel institution which can skip the parliament which is considered as the temple of the democracy . As per the article 123 of the constitution the president of India and as per the article 213 the governor of state with an advice from the council of Minister can promulgate an ordinance if there is any situation arises which does not permit the regular parliamentary procedures and need immediate response. The past few decades of experience tell us about how the promulgation of ordinance has become frequent, below are the some of the reasons for promulgation of ordinance:

    1. Due to Lack of requisite number in either houses of the parliament.
    2. Due to opposition within party due to some socio,economic, religious or selfish reasons.
    3. In case of amendment to the constitution where the consent of half of the states is required and when there is an opposition from different states due to various socio,economic and cultural reasons.
    4. Due to pressure from some pressure group quarters like Industrial Lobby,Professional and other Institutions.
    5. Also some of the ordinances promulgated for populist purposes to gain the dividend in election process etc.

    Due to such unabated use of this discretionary power the supreme court of India came forward with some of the guidelines which specifies the reasons and situation when the power of ordinance making is to be exercised. As per the the supreme court of India This power of exception has be used in exceptional circumstances only rather than making it as a rule to avoid regular law making process in the parliament. The supreme court has also strike down various ordinances which were not in consonance with the basic structure of constitution. Below are the some of the ordinances which were repeatedly promulgated in the recent past
    1. Land Acquisition Act of 2015.
    2. Raising of FDI in different government sectors.
    3. Amendments to various labour laws.
    4. Amendments to companies act.
    5. Various environmental and Forest acts.
    6. Amendment to criminal procedure code act etc.

    As the makers of the constitution adopted this ordinance making power from the The government of India act of 1935 by considering the dynamic and multi-modal situation of India which was not only got worsened due to foreign rule but also due to various menaces of Poverty,malnutrition,social Issues,religious riots and linguistic chauvinism. They decided to adopt this feature to met the urgent demands of the people of India which were already battered due to Poverty and other socio-economic conflicts. It would be better to keep it while making a law to put some restriction on promulgation of ordinances by delineating the specific scenarios under which this power has to be excised. It will be needed to meet the aspiration and emergency conditions in different part of the country which was not only divided geographically but also culturally and linguistically. It will be also needed to achieve the ultimate goal of sustainable and inclusive growth of our country as a whole.

    • http://shashidthakur23.blog.com Shashi Thakur

      good job bro…

      • DVM

        Thanks bro…

  • Preeti Fci

    2015 mains question solved:
    Answer: The rationales justifying the power to promulgate ordinances:
    1. According to Dr BR Ambedkar the mechanism of issuing an ordinance has been devised in order to enable the Executive to deal with a situation that may suddenly and immediately arise when the Parliament is not in session.
    2. According to him, the only solution was to confer upon the executive the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law when the legislature was not in session.

    Whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power:
    3. In DC Wadhwa case (1986), the court declared that promulgation of an ordinance is permissible if the legislature is too busy with other work to take up the ordinance for consideration or time at its disposal is too short.
    4. The number of promulgated and repromulgated ordinances has increased after the decision, especially at the Centre; governments have found it all too useful. Unheard of until 1992, repromulgation has become a norm in the last two decades.

    Whether the power to promulgate ordinances be repealed:
    5. The ordinance-making power of the executive should not be repealed but needs to be suitably restrained to create a balance of power between the executive and the legislature in India and to check the misuse of the same.

    • http://shashidthakur23.blog.com Shashi Thakur

      good job..

      • Preeti Fci