Why in news?
- A seven-judge Constitution Bench of the Supreme Court in Krishna Kumar Singh vs. State of Bihar has held that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution.
The Bihar Government had repromulgated a 1989 ordinance for seven successive times by which it took over 429 Sanskrit schools in Bihar without even once tabling it in the State Assembly.
What does the Constitution Say?
1.Article 123 and Article 213 confers power to promulgate ordinance on the President and the Governor respectively.
2.Under the Constitution, an Ordinance can be promulgated only when:-
- Legislature or either house of legislature is not in session.
- Circumstances exists which require immediate action.
3.The Supreme Court had already declared in 1986, in D.C. Wadhwa case, that repeated repromulgation of ordinances was unconstitutional.
Why frequent resorting to Ordinance Route?
- Reluctance to face the legislature on particular issues.
- Lack of majority in the Upper House.
- Repeated and willful disruption by opposition parties.
Arguments against ordinance route
- It is against separation of power as law making power is domain of legislature.
- It gives arbitrary power in the hands of executive.
- Law is announced without any debate and discussion.
Implication of the Judgment
- The court can go into whether the President or Governor had any material to arrive at the satisfaction that an ordinance was necessary.
- The Court can examine whether there was any oblique motive, thus extending power of judicial review.
- It makes mandatory for an ordinance to be tabled in the legislature for its approval.
The Constitution has provided for Separation of Power where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance making power only as per the spirit of the Constitution and not to evade legislative scrutiny and debates.