Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 73
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Deprecated (16384): The ArrayAccess methods will be removed in 4.0.0.Use getParam(), getData() and getQuery() instead. - /home/brlfuser/public_html/src/Controller/ArtileDetailController.php, line: 74
 You can disable deprecation warnings by setting `Error.errorLevel` to `E_ALL & ~E_USER_DEPRECATED` in your config/app.php. [CORE/src/Core/functions.php, line 311]
Warning (512): Unable to emit headers. Headers sent in file=/home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php line=853 [CORE/src/Http/ResponseEmitter.php, line 48]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 148]
Warning (2): Cannot modify header information - headers already sent by (output started at /home/brlfuser/public_html/vendor/cakephp/cakephp/src/Error/Debugger.php:853) [CORE/src/Http/ResponseEmitter.php, line 181]
Notice (8): Undefined variable: urlPrefix [APP/Template/Layout/printlayout.ctp, line 8]latest-news-updates/rolling-back-ordinance-raj-suhrith-parthasarathy-4681086.html"/> LATEST NEWS UPDATES | Rolling back Ordinance Raj -Suhrith Parthasarathy | Im4change.org
Resource centre on India's rural distress
 
 

Rolling back Ordinance Raj -Suhrith Parthasarathy
-The Hindu

The Supreme Court’s verdict that ordinances are subject to judicial review, and do not automatically create enduring effects, places a timely check on a power rampantly abused by governments

On January 2, in one of many judgments delivered on its first working day of the year, the Supreme Court, in Krishna Kumar Singh v. State of Bihar, made a series of pronouncements with potentially huge implications for the future of democratic governance in the country. The case raised intricate constitutional questions concerning the executive’s power to make law through ordinance, but the majority’s opinion, authored by Justice D.Y. Chandrachud, on behalf of five of the seven judges who heard the case, is lucid both in its reasoning and in its ultimate findings.

For far too long, the court recognised, the power to make ordinances has been abused to subvert the democratic process. A failure of a legislature to confirm an ordinance, therefore, in the court’s ruling, was fatal both to the validity of the law, and also, unless public interest otherwise demanded, to the rights and liabilities that may have accrued from such a law. According to Justice Chandrachud, the authority to issue ordinances is not an absolute entrustment, but is “conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action”. In other words, ordinances are not immune from judicial challenge.

Ordinary idea of ordinance

The contest over the use of ordinances as a tool to make laws stretches well beyond the Constitution’s adoption. Indeed, at the time when the provisions incorporating these powers were debated in the Constituent Assembly, B.R. Ambedkar suggested that any concerns over the conferment of ordinance-making powers on the executive were really only a quibble over language. “My own feeling is that a concrete reason for the sentiment of hostility, which has been expressed by my honourable Friend, Mr. [H.V.] Kamath as well as my honourable Friend, Mr. [H.N.] Kunzru, really arises by the unfortunate heading of [the] Chapter ‘Legislative Powers of the President’,” Ambedkar said. “It ought to be ‘Power to legislate when Parliament is not in session’. I think if that sort of innocuous heading was given to the Chapter, much of the resentment to this provision will die down. Yes. The word ‘Ordinance’ is a bad word, but if Mr. Kamath with his fertile imagination can suggest a better word, I will be the first person to accept it. I do not like the word ‘ordinance’, but I cannot find any other to substitute it.”

But had Ambedkar been around to witness the systematic dismantling of the constitutional basis for the ordinance-making power by recent governments at both the Central and State levels, it is likely that he may have renounced his earlier opinion. It’s now apparent that the problem in the use of ordinances arcs far beyond mere semantics. It goes, in fact, as Shubhankar Dam, a professor of law, and an author of a recent book on ordinances, has argued, to the very root of the power’s conferment. This is because, in many ways, the clauses allowing for the power to make ordinances are an outlier in our constitutional structure.

The founders’ aim was always to impose a separation of power between the three recognised wings of government. In this arrangement, the legislature (Parliament at the Centre, and the Assemblies and the Councils in the States) is tasked with the primary job of making laws; the executive’s role is to administer the country by enforcing these laws; and the judiciary interprets the laws, sees if they are being followed, and, where required, reviews them to ensure that they are constitutionally compliant. The executive’s power to issue ordinances, therefore, goes against this general grain of command; for it acts neither as a check nor as a balance on the authority exercised by the other branches of government.

Please click here to read more.