Ordinance Power [Krishna Kumar Singh vs. State of Bihar] Judgement

On January 2, the Supreme Court has delivered a judgment in Krishna Kumar Singh vs. State of Bihar,  stating that ordinances are subject to judicial review, and do not automatically create enduring effects. Put simply, ordinances are not immune from judicial challenge. This judgment is expected to have huge implications for the future of democratic governance in the country. This judgment stems out of the Supreme Court’s understanding that power to make ordinances has been abused to subvert the democratic process.

Idea of ordinance

Article 123 mandates that the Union executive can have authority to issue ordinance only when both the Houses of Parliament are not in session. The authority to issue ordinances needs to be used only to meet the emergent demands arising out of extraordinary situations. In addition, it states that any ordinance can have the same force and effect as a statute of Parliament only if it is laid before both the houses of the Parliament. Further, Ordinance so made will hold good only for a duration of 6 weeks after the reassembly of Parliament. Article 213 mandates near identical terms with respect to the ordinances on subject of state authority.

Abuse of ordinance making power

In practice, ordinances are seldom issued as a purely exceptional measure. Government at the central and state level are promulgating ordinance to bypass the deliberations and numerical shortcomings they face in Rajya Sabha. Government has started to promulgate ordinances as an alternative tool of legislation.

Founders of Constitution have made an arrangement in which powers are separated from the three wings of government. The Legislatures are tasked with the primary job of legislating. The executive is tasked with administering the country by enforcing the laws made by the legislatures. And finally, the judiciary’s role is to interpret the laws and to make sure that they are being followed and wherever required, review them to ensure that they are constitutionally compliant. Therefore, executive’s power to promulgate ordinance goes against the essence of this arrangement. It neither acts a check nor as a balance on the authority exercised by the other wings of the government.

Key Points from Verdict

The Supreme Court has overruled two of its earlier judgments and has ruled the following in Krishna Kumar Singh vs. State of Bihar:

• The court will not enquire into the adequacy of material present before the President or Governor. It will investigate whether executive has committed any fraud or an abuse of power.
• Ordinance is distinct from temporary legislation. Ordinance is not created by legislatures. Hence, it does not automatically create rights and liabilities which go beyond its term of operation.

Conclusion

Legislative debates and deliberations form the foundation of our democracy. Objections from opposition and deliberations help in making laws based on critical reasoning. Creating laws purposefully when the houses are not in session through ordinance route altogether debases the Constitution and its finest ideals.