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Promulgation Of Ordinance

All of the three branches' duties, obligations, and powers are clearly defined, thanks to the idea of separation of powers. Additionally, it functions as a system of responsible administration to prevent actual misuse or exploitation of the organs' authority. Given the size and diversity of the country's population, the assembly is in charge of making regulations; however, the constitution allows the president to step into action and approve regulation in times of emergency even if the council isn't present because of the size and diversity of the nation's population. Ordinances have a similar impact to laws passed by the legislature, and issuing ordinances is one of the executive's most important responsibilities. India's Constitution gives the administration the authority to pass laws when they are urgently needed.

The President of the country and the Governors of the States are given the authority to promulgate ordinances to accomplish this. But ordinances have frequently been employed to undermine the legislative process. In line with the notion of legislative supremacy, the power to issue ordinances is under legislative control. The Cabinet Ministers, a body jointly accountable to the legislature, provides the President and, in some situations, the Governor with support and recommendations.

There has been a lot of debate over the executive's ability to enact laws, regardless of how articles 213 & 123 of the Indian constitution permit the governor and president to do so in times of emergency. In some cases, the authority of the executive goes against the spirit of the constitution and the constant issuance of ordinances leads to an "Ordinance Raj."

One of the main problems with the legislation is the fact that the president seldom ever uses formal protocol; rather, he only declares them; in practice, the committee leaders decide if the need is important. Sometimes the ecclesiastical influence might lead to mediation. Re-promulgation is a practice that the ruling government engages in that is both harmful and malicious. Several minority regimes have likewise abused & re-promulgated ordinances with their own ulterior purposes throughout the long history of Indian governance.

Legislators and judges should monitor the practice since governments-both at the central level and at the State level-violate this principle. Both of the other organs are similarly reneging on their Constitutional obligations by failing to investigate this practice. The provisions of the Constitution do not set a limit on how many laws the president may enact in a given period of time. This lack of explicitness may lead the president to enact as many ordinances as he likes because the parliament isn't there and the necessity for heinous conduct is present.[1] The most significant problem or difficulty associated with these ordinances is their repeated promulgation; the debate over whether they should be legal or unconstitutional has been going on for a long time.

Constitution�s Guidelines/Limitations:
In contrast to being reserved for emergencies or as a last choice, the power to draught ordinances has been routinely employed, according to an analysis of the history of those documents that have been issued since independence. Ordinance re-promulgation on a regular basis is not a new problem, but it has recently grown increasingly prevalent. Additionally, there are questions concerning the legality of this sudden inundation. Over the years, a variety of cases have been presented to determine the validity of the ordinances. The most significant cases involving the re-promulgation of ordinances involve:
  • D C Wadhwa vs State of Bihar: The court determined that it would be against India's constitution to repeatedly promulgate ordinances with comparable provisions without first attempting to pass bills. The court also held that the executive's extraordinary ability to pass regulations should not be viewed as a replacement for the law-making body's authoritative power.[2]
  • Krishna Kumar Singh vs State of Bihar: Re-promulgation of ordinances puts the legislative branch's ability to enact laws in jeopardy. The court emphasized in its ruling that the parliament has the right to create legislation and that "ordinances are only allowed to be used in extraordinary instances."[3]

Ways To Address The Issue
Ordinances, which I have mentioned, are not healthy in a society with democracy; they go against the fundamental principles of the constitution and ought to be utilized only in dire emergencies. Even if the original method was unfavorable, the Re-promulgation method is far worse.

The approach to the issues raised above is the theory of checks and balances. According to the Constitution, each branch is equal. This demonstrates that no branch is better or worse than any other. As a consequence, the government's efforts in this regard might be assessed using a three-way check system.
  • Legislative Mandate
  • Parliament's Judicial Committees
  • Judicial system
The President's wise judgment is yet another element in this context.[4]

In violation of all democratic principles, the administration has been given the authority to handle exceptional circumstances. Therefore, it is crucial to make sure that enough controls and constraints are put in place to avoid any power abuse that would undermine the rule of law. One of the cornerstones of the Constitution is the idea of the separation of powers. According to this, the lawmaking bodies have the authority to enact regulations, but in times of emergency, the executive can step in and enact ordinances, which have similar authority to regulations approved by the assembly but have a special six-week expiration date after the parliament has reconvened.

The promulgation of ordinances is the main concern of this administrative authority. Despite the fact that a Constitution has never specifically authorized it, it has long been common practice for Ordinances to be repeatedly announced. Re-promulgation of ordinances goes against the constitution's very essence and should be avoided unless absolutely necessary. Because the two the state and the national government governments frequently issue ordinances, they are violating the constitution. The executive must exhibit restraint; if they don't, the judiciary and legislative bodies will also b

  • Shubhankar Dam, Repromulgation Game, THE HINDU (June 3, 2015, 12:49 AM).

  • D.C. Wadhwa v The State of Bihar (1987), AIR 579
  • Krishna Kumar Singh & Anr v State of Bihar (2017) 2 SCJ 136
  • Vishal Patil, what are the pros and cons of an ordinance? What changes are required in the present scenario to make it more democratic? (2017)

  • accessed on 25 October 2018.

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