Answer:

An ordinance under Article 123 of the constitution is an instrument at the hands of executives and president can make law in a situation

♤ If neither House of Parliament is in session.

♤ Circumstances exist, which render it necessary to take immediate action.

♤ Every ordinance ceases to exist six weeks from the end of the next sitting of Parliament.

Article 213 gives the same power to the Governor of a State.

But under separation of power principle legislature’s function is to make laws and

executives to implement it. However due to –

♤ Dynamicity and complexity in governance.

♤ Practical and political compulsions.

Ordinance route has been resorted to more often than not. For example during emergency and even during normalcy say in Bihar more than 250 ordinances were repromulgated some as long as 14 years which supreme court commented as ordinance raj. It is said ordinance makeup along with administrative adjudications lead to new despotism.

So the ordinance making power needs to be suitably restrained. This need is also reflected in various Supreme Court judgements. Courts have uniformly held, in varying formulations

♤ That the power of the President and the Governors to issue ordinances is in the nature of an emergency power.

♤ It held that since promulgating an ordinance was a legislative action, the grounds on which it could be challenged were the same as those on which laws made by Parliament could be challenged.

♤ The motives of the legislature in passing a statute is beyond the scrutiny of courts

♤ Supreme court held that ordinance making is not beyond judicial review.(In A.K Roy vs. UOI 1980)

♤ Supreme Court also held that ordinance cannot be a substitute for the law making power of the legislature and court could strike down the repromulgated ordinances.

Despite these recently centre has promulgated many ordinances like food security, SEBI amendments, criminal law amendments, ordinance on land acquisition(amendment) act among others and out of these 3 of them has been repromulgated second time i.e., in violation of supreme court decisions. Further ordinances on corruption and right to service were dropped by the govt. themselves to save face in light of Supreme Court judgements and media activism.

In sum executive should exercise its power judiciously. Framers of our Constitution envisaged ordinance-making powers only for unforeseen, sudden situations and where the executive required additional legal sanction to address the situation. Thus to safeguard the sanctity of parliamentary democracy ordinance route must be suitably restrained only to meet emergent situation and then misuse shall be effectively checked via checks and balances.