Articles 123 and 213 of the Indian constitution provide the President and the Governors respectively with the powers to promulgate ordinances when the legislatures are not in session, strictly in extraordinary situations and unforeseen circumstances which require immediate action.
Framers of our constitution, though perturbed by the use of the word “Ordinance” – since it was reminiscent of a police state, agreed that this provision was necessary and would be used only sparingly in a democracy such as independent India.
However, the provision has been used as a parallel law-making power, to bypass the legislature and thus subvert the democratic deliberative process. A LokSabha report shows that President has promulgated nearly 685 ordinances since independence, averaging more than 10 ordinances per year.
In RC Cooper vs UoI (1970), Supreme Court ruled that it could not examine the reasons regarding the necessity to promulgate an ordinance. Since then, it has taken several steps over the years to check this abuse of constitutional provisions:
- It reminded the government in RK Garg vs UoI (1981) and AK Roy vs UoI (1982) that the provision must be used sparingly and that judicial review of the ordinance making power is implicit.
- In DC Wadhwa vs State of Bihar, SC struck down the repeated repromulgation of ordinances by the Bihar governor, saying that repeated repromulgation amounts to a fraud on the Constitution.
- SC vastly increased the scope of judicial review on gubernatorial powers in SR Bommai vs UoI (1994).
- In the recent judgement in Krishna Kumar Singh vs State of Bihar, SC ruled that judicial review would not enquire into the sufficiency of material presented to the President or Governor, but it would check if there had been abuse of power by the Executive, thus cementing the assertion that promulgation of ordinance is under judicial review.
Along with holding repeated repromulgation as constitutionally invalid, it also put forth a theory of enduring rights, whereby it ruled on the fate of decisions taken during the lifetime of the ordinance after the expiry of the same.
Here, it ruled that even though the acts or decisions taken under the power of the ordinance should ordinarily be scrapped after expiration of the duration of the ordinance, it would decide what provisions of the decisions would remain or be scrapped on a case-to-case basis. The Court would decide if undoing certain acts would run counter to public interest in order to arrive at a decision.
The SC, therefore, has acted in its capacity as the custodian of the constitution and ensured that the delicate balance of powers between the different branches of the State is maintained.
