Ordinance Making Power in India: A Critical Analysis

Why in news

Karnataka government has also issued an ordinance to protect borrowers who have taken loans from unlicensed and unregistered Microfinance Institutions (MFIs).

Introduction

Ordinance Making power is a crucial legislative tool that allows the executive to address urgent issues when the legislature is not in session. In India, this power is granted to the President under Article 123 and to the Governor under Article 213 of the Indian Constitution.

Ordinance Making Power of the President

Constitutional Provisions: Article 123

• The President of India can issue ordinances when both Houses of Parliament are not in session and immediate legislative action is required.
• An ordinance has the same force as a parliamentary law but must be approved by Parliament within six weeks of its next session.
• If not approved, the ordinance automatically lapses.

Limitations on the President’s Power

• Ordinances cannot be used as a substitute for regular legislation.
• The President must be satisfied that immediate action is necessary.
• Subject to judicial review, ensuring it aligns with constitutional principles.

Ordinance Making Power of the Governor

Constitutional Provisions: Article 213

• The Governor of a state can issue ordinances when the State Legislature is not in session and immediate action is required.
• Similar to the President’s power, a Governor’s ordinance must be approved by the state legislature within six weeks of its next session.

Judicial Oversight on Ordinances

The Supreme Court has clarified that ordinance making power is not absolute and is subject to judicial review. Key judgments include:

• RC Cooper vs. Union of India (1970) – Held that the President’s satisfaction regarding "immediate action" can be challenged.
• DC Wadhwa vs. State of Bihar (1987) – Ruled that ordinances should be used in exceptional circumstances and not as a substitute for legislation.

Necessity of Ordinance Making Power in India

• Immediate Action – Enables the government to respond swiftly during emergencies, national crises, or natural disasters.
• Governance Continuity – Ensures smooth governance when legislatures are not in session.
• Temporary Legislative Measures – Provides temporary laws until formal legislation is enacted.
• Addressing Legislative Gaps – Helps regulate unforeseen issues that require urgent intervention.

Challenges and Misuse of Ordinances

• Bypassing the Legislature – Governments may misuse ordinances to avoid parliamentary scrutiny.
• Lack of Debate and Scrutiny – Ordinances are not subjected to the detailed examination that regular laws undergo.
• Political Manipulation – Ordinances can be used for political gains, affecting democratic processes.
• Executive Dominance – Frequent use of ordinances shifts legislative power to the executive, weakening the legislature.
• Judicial Ambiguity – Courts have struggled to define what constitutes "urgency", leading to subjective interpretations.

The ordinance making power in India is a valuable but limited legislative tool. While it ensures governance continuity and provides immediate solutions, excessive or improper use can undermine democracy. Judicial oversight and parliamentary scrutiny are essential to maintain a balance between executive efficiency and legislative accountability.