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[op-ed snap] Clamping down on ordinance raj

Context:

Superior courts and constitutional functionaries have routinely criticized the propensity of governments to take the ordinance route for mere political expediency

Why does the government take an ordinance route:

Temptation to use the power vested in the President and the Governors under Articles 123 and 213 of the Constitution is generally a result of one of the following three reasons:

  1. Reluctance to face the legislature on particular issues,
  2. Fear of defeat in the Upper House where the government may lack the required numbers,
  3. Need to overcome an impasse in the legislature caused by repeated and willful disruption by a vociferous section of the Opposition

Verdict of a seven-member Bench of the SC

  1. The Supreme Court had declared in 1986, in D.C. Wadhwa, that repeated re-promulgation of ordinances was unconstitutional
  2. In Krishna Kumar Singh v. State of Bihar, it goes deeper and concludes that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution
  3. The judgment widens the scope of judicial review of ordinances

When are Ordinances issued?

  1. Ordinances should be issued only to meet certain exigencies
  2. And under compelling circumstances
  3. A dysfunctional House sometimes constitutes a compelling circumstance in itself

In common practice:

  1. The combination of Opposition obstructionism and government obstinacy in not making any concessions to those across the aisle that derails legislative business and leads to ordinances

Note4Students:

The courts can only define the boundaries between the use and abuse of power, but it is up to parties in the legislature to observe the limits of constitutional propriety and show that they have both the time and the will to enact laws. The article shows the common manner in which the ordinances are passed and the nuances related to it. You should remember the SC’s latest judgment given regarding ordinances. Also note down when are ordinance issued.

Back2Basics:

Executive authority for Ordinance

  1. Article 123 of the Constitution enables the President of India to promulgate an ordinance if neither House of Parliament is in session and “circumstances exist, which render it necessary for him to take immediate action”
  2. Every ordinance has to be laid before the Parliament, and ceases to exist six weeks from the end of the next sitting of Parliament
  3. Since the Constitution mandates that Parliament be called into session at least once every six months, ordinances have a de facto expiration period of approximately seven and a half months
  4. Article 213 gives the same power to the Governor of a State
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