Article 123 of the constitution grants power to President to promulgate ordinance if he/she feels conditions are necessary for a law, provided the parliament is not in session.
SO it is a extraordinary power which shall be utilised in rare situation. The concerns raised against the ordinance is that its frequent use and repromulgation of ordinance. It has been seen as a tool to bypass the parliamentary procedures. So it is anti to the tenets of representative democracy and disturb the separation of power.
Above concerns are valid to a certain extent but cannot be the substantive grounds for removal of ordinance provisions because:
- Constitution itself provides a check on its misuse. An ordinance has to be laid in the parliament after 6 weeks of its assembly. Hence ordinance can remain for 6months and 6 weeks maximum.
- Constitutional amendment cannot be done via ordinance.
- In AK roy vs Union Of India (1982), the court argued that president ordinance making power is subjected to judicial review.
- In D C Wadhwa vs state of Bihar, the SC held that courts could strike down re-promulgated ordinance. Same judgement was passed recently in the case of Krishna Kumar Vs state of Bihar case.
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