The Government of India Act, 1935, which provided the Governor General authority to enact Ordinances, was incorporated into the Indian Constitution. This act's sections 42 and 43 dealt with the Governor General's power to issue an ordinance, which stipulates that only he has the authority to do so "if circumstances exist which render it necessary for him to take prompt action." A great deal was said and debated about the President's capacity to issue executive orders; some members of the Constituent Assembly believed that this power violated constitutional morals and was therefore extraordinary; others argued that it should be reserved for use only in extreme circumstances.
Although they have the same legal effect as a statute, ordinances are only in existence for a limited time. When the state legislature (or one of the two houses in states with bicameral legislatures) is not in session, the governor of a state can make ordinances under Article 213 of the Constitution.
The ordinance making power is the most important legislative power of the President and the Governor. To handle unexpected or urgent events, they have been given the authority. This power to promulgate ordinance is not a discretionary power. Council of Ministers’ (headed by PM) advice is a pre-requisite
Immediate action requirement: Temporary law making power has been conferred on the President and the Governor under the Constitution of India to meet the unforeseen and extraordinary situations which require immediate action to which the ordinary law prevailing at that time cannot handle.
Legislature not in session: An ordinance can be issued only when either of the Houses of Parliament, Lok Sabha and Rajya Sabha, is not in session. In such a condition, ordinance making power helps to meet emerging necessities of formulating a required law.
Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Key Debates:
In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature. Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances.
Conclusion
We learn from the aforementioned situations that the ordinance promulgation provision and procedure are not without flaws. As with other articles of the Constitution, this provision has some drawbacks. The intention behind the provision was clear and positive if we look at the debates of the constituent assembly which was to take care of emergency situations in the country in the absence of the legislature in its proper functioning through the entity of the President. However, there is ample evidence that this provision has been abused in the recent past for purposes other than those for which it was intended.
Ordinance making power given to the president is extraordinary and leaves ample scope for abuse of power and dilution of separation of power principle as technically the law making authority lies with the legislature not executive. There is a need -that ordinance making power should be exercised only when there’s an exigency and it should not be made a usual practice.
The executive branch must exercise caution and should use its ordinance-making authority only in unexpected or urgent circumstances, not to dodge legislative scrutiny and debate. That is, no branch is superior or inferior to another.