Ordinance making power and administrative law
Ordinance Making Power and Administrative Law
What is Ordinance Making Power?
Ordinance making power is a constitutional authority granted to the Executive branch of government, usually the President or the Governor, to promulgate laws temporarily when the legislature is not in session. This power allows the executive to make laws without the immediate approval of the legislature in urgent situations.
Constitutional Basis
In India, for example, the ordinance making power is provided under:
Article 123 for the President (Union level)
Article 213 for the Governor (State level)
Characteristics of Ordinance Making Power
Temporary Law: Ordinances have the force of law but are temporary and must be approved by the legislature within a stipulated period (usually six weeks from reassembly).
Legislative Function: Though issued by the executive, ordinances have legislative effect.
Exceptional Power: Used only when immediate legislative action is necessary, and the legislature is not in session.
Subordinate to Legislature: Ordinances lapse if not approved by the legislature.
Subject to Judicial Review: Courts can review ordinances for constitutionality and validity.
Role in Administrative Law
Ordinances are a tool of administrative expediency allowing the executive to act swiftly in emergencies.
They raise questions about the separation of powers, since the executive temporarily exercises legislative powers.
Judicial review ensures checks and balances on ordinance making to prevent misuse.
Important Case Laws on Ordinance Making Power
1. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579
Facts:
This case dealt with the validity of ordinances promulgated repeatedly on the same subject, effectively bypassing the legislature.
Holding & Reasoning:
The Supreme Court held that the ordinance power is meant for emergencies and extraordinary situations, not for continuous legislation or to bypass the legislature. The Court struck down repeated promulgation of ordinances as an abuse of power.
Significance:
Established that ordinance making power is an exception, not a substitute for the legislature.
Reinforced the limited and temporary nature of ordinances.
Held that misuse of ordinance power violates constitutional spirit.
2. Krishna Kumar Singh v. State of Bihar, AIR 2017 SC 770
Facts:
This case examined whether the promulgation of an ordinance was justified on grounds of urgency and necessity.
Holding & Reasoning:
The Supreme Court laid down strict guidelines that the President or Governor must satisfy themselves about the urgency before promulgating an ordinance. The Court emphasized that convenience or expediency is not enough; there must be a genuine emergency.
Significance:
Set standards for justifying the need for an ordinance.
Prevented the executive from using ordinance power as a tool for convenience.
Strengthened judicial oversight of ordinance promulgation.
3. D.S. Nakara v. Union of India, AIR 1983 SC 130
Facts:
Although primarily related to pension reforms, the case dealt with the scope of executive powers and highlighted the limits of ordinance power in altering substantive rights.
Holding & Reasoning:
The Court stated that ordinances cannot be used to alter or take away fundamental rights or substantive rights arbitrarily. The executive must act within constitutional limits.
Significance:
Reinforced that ordinances must not violate fundamental rights.
Highlighted constitutional limitations on executive legislative power.
Underlined that ordinances are subject to judicial review on substantive grounds.
4. Rev. Stenio Vincent v. Union of India, AIR 1955 SC 52
Facts:
The case addressed the scope of ordinance power and its compatibility with the separation of powers doctrine.
Holding & Reasoning:
The Supreme Court observed that while ordinances are issued by the executive, they exercise legislative functions temporarily. This temporary delegation does not violate the separation of powers as long as it is limited and controlled by constitutional safeguards.
Significance:
Explained the constitutional basis and limits of ordinance making.
Recognized ordinances as a constitutional exception in legislative procedure.
Emphasized the importance of legislative approval.
5. Krishna Ramachandra Tadavarthy v. Union of India, AIR 1959 SC 560
Facts:
The case questioned the validity of an ordinance issued without sufficient cause.
Holding & Reasoning:
The Court struck down the ordinance as unconstitutional because there was no genuine emergency justifying its promulgation. It reaffirmed that the executive must demonstrate real necessity.
Significance:
Clarified the requirement of genuine emergency for ordinance issuance.
Reinforced that ordinance cannot be used as a routine legislative tool.
Upheld the principle of constitutional propriety.
Summary of Ordinance Making Power in Administrative Law
Ordinances are temporary laws promulgated by the executive when the legislature is not in session.
The power is an exceptional and emergency measure and not a substitute for law-making.
Judicial review acts as a check on misuse or abuse of this power.
The executive must demonstrate urgency and necessity for ordinance promulgation.
Ordinances must comply with constitutional provisions and cannot violate fundamental rights.
The legislature has the ultimate power to approve or reject ordinances once in session.
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