Do you think ordinance is a parallel legislative power?
With the increasing disruptions of the Parliamentary proceedings, the ordinance making power of the President is gaining more significance day by day. Do you think ordinance is a parallel legislative power? Critically examine.
India is a democratic country. The elected representatives from various constituencies represent the people of the country in the Parliament. They have been bestowed with the major task of formulating the laws that govern the country. With the increasing disruptions in the Parliamentary proceedings, and the continuous adjourned sessions, it is the country and its people who suffer the maximum and democracy is undermined to a great extent.
Under article 123 of the constitution, the President has been given the power of promulgation of ordinances when either one house or both the houses of the parliament are not in session. This implies that when both the houses are in session, an ordinance promulgated at that time is void. Therefore, it is not a parallel power of legislation.
The significance of an ordinance
The Executive is vested with the power of this legislation to deal with any unforeseen, sudden and urgent situation in which formulating a law is extremely necessary and the Parliament is not in session at that time. This is a mechanism by which any emergency situation can be dealt. But of course, it has no necessary connection with the national emergency.
The scope of judicial review
An ordinance is subjected to a judicial review. After the 44th constitutional amendment act of 1978, an ordinance has been brought under the judicial review. The reason behind this is to prevent its misuse as it was seen in the DC Wadhwa case of 1987.
The Supreme Court held that re-promulgation of an ordinance with the same text, without any intention of getting the bills passed by the assembly would amount to violation of the constitution and is liable to be struck down. Also proroguing a house deliberately with the intention of passing an ordinance is considered malafide.
Therefore, it can be concluded that, an ordinance can be promulgated during the recess of the Parliament but only under urgent circumstances. It must be placed before the parliament after the reassembly of the Parliament for its approval. The bill (ordinance) should be debated and discussed in the Parliament and once approved, only then it should be considered as a law. Re-promulgating it again and again circumvents the authority of the legislature and becomes a threat to the democratic nature of the country.