Approach:

Introduction: Give an introduction about ordinance-making power.

Body: Give a few points on misuse of the ordinance. Give a few points on safeguards including judicial safeguards.

Conclusion: Give a holistic conclusion.

Answer:

Article 123 of the Constitution grants the President certain law-making powers to issue ordinances during the recess of Parliament. They have the same legal force as Acts of Parliament but are temporary in nature. And are intended to address unforeseen or urgent situations.

Concerns: Misuse of ordinances -

1. The power to issue ordinances infringes upon the principle of separation of powers, as lawmaking is primarily the role of the legislature. Instead of using the ordinance as a last resort, the executive is using it on a regular basis. e.g. the number of ordinances issued by the centre has increased from an average of 7.1 per year in the 1950s to 15 in 2020.
2. The requirement for the President's satisfaction before promulgating an ordinance provides scope for potential misuse of this power.
3. Avoiding debates, Deliberate bypassing of the legislature and discussions on contentious legislative proposals, which contradicts the principles of democracy. Eg: Ordinance on Land Acquisition, and Central farm laws which met with inescapable protest were at first brought through the Ordinance course.
4. The re-promulgation of ordinances by State Governments has persistently avoided presenting them before the legislature. Eg: a series of ordinances were issued by the Bihar Governor in the late 1980s and early 1990s concerning the takeover of private Sanskrit schools by the state.

Safeguards to prevent misuse:

1. President can promulgate an ordinance only when both houses are not in session or only one house is in session.
2. Ordinances are subject to the same constitutional limitations as Acts of Parliament i.e., an ordinance may only be promulgated on issues over which the Parliament has legislative authority & it cannot abridge or take away any of the fundamental rights.
3. The provision that every ordinance must be laid before the respective legislature within six weeks of its reassembly for approval, failing which it ceases to exist.
4. The President can never issue an Ordinance to amend the Indian Constitution.
5. RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate an ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
6. DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
7. In Krishna Kumar Singh v. State of Bihar (2017), Supreme Court held that the power to issue ordinances is not absolute, but is conditional on the satisfaction of the existence of circumstances to take immediate action.
   
   

Thus, while the Constitution provides the President and the Governor with the power to issue ordinances in exceptional circumstances, the ordinance-making power should be exercised after appreciating the wisdom of RC Cooper and DC Wadhwa cases and should be used solely for unforeseen or urgent matters, rather than as a means to evade legislative scrutiny.