Thursday, January 8, 2015

promulgation of ordinances

“The procedure of the promulgation of ordinances is inherently undemocratic. Whether an ordinance is justifiable or not, the issue of a large number of ordinances has, psychologically, a bad effect.” Critically comment with suitable examples.

Article 123 of the Constitution has empowered the President to promulgate directives if the Parliament is not in session and they carry the full force of the law. However, most other democratic countries have not placed such powers upon the executive. Provisions for passing ordinances are widely considered as remnants of our colonial legacy and the GoI Act, 1935.
Ordinances were envisaged to be promulgated when a situation of emergency would arise and the deliberations on the issue by the Parliament would not be possible. On many occasions such ordinances have played a positive role. The government’s attempt to demonetize large rupee denominations in 1978 to prevent illicit money transfers, the creation of the TRAI in 1997 to raise private investors’ confidence in the ongoing process of liberalization and the recent ordinance to amend the Land Acquisition Act to kick-start stalled projects are cases in point.
However, ordinances have generally been based on political consideration rather than on principles of good governance. The promulgation of the SARFAESI Ordinance in 2002, when the bill was being deliberated by the concerned Standing Committee, the promulgation of the Electricity Regulatory Commissions Ordinance in 1998, one day before the government had agreed to convene, and the previous government’s ordinance to shield convicted legislators are all instances when the Executive's unilateralism sent a wrong message about the country's democratic bearings.
The Executive has been given wide-ranging powers such as the power to declare an emergency, setting up of important administrative authorities (e.g. PFRDA, UIDAI) etc. without Parliamentary Approval. Restraining the ordinance-making power to prevent further concentration of power by the Executive is the need of the hour.

---Another Answer---


Ordinances are temporary laws which can be issued by the President under article 123 of
the constitution when Parliament is not in session based on the advice of the
Union Cabinet. But promulgation of ordinance are supposed to be an abuse of
power and undemocratic, it can be explained by:
1).Court cannot inquire into the validity of the law as he is bound by the
constitutional obligation to question the decision of President as happened in
the Cooper case where supreme court opined that the decision of the president
can be questioned on mala fide intention. However this was overturned by the 38th
amendment which laid down the satisfaction of President is final.
2)Creates a difference between the executive and legislative powers as in between
1967-1981 the governor of Bihar promulgated 256 ordinances, while the assembly enacted only 189 laws.
3).Ordinances have the same effect as laws and their promulgation is not preceded
by debates and does not reflect the will of the nation
4). When the ordinance is presented once the parliament is in session the Lok Sabha will have no option except to authorise.
5)Debate on the bill allows both the houses to make necessary amendments to rectify unwelcomed features or defects.
The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends .Further ordinances should be subject to close judicial scrutiny and review.

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