Answer: 

Article 123 of the Constitution enables the President of India to promulgate an ordinance if neither House of Parliament is in session and “circumstances exist, which render it necessary for him to take immediate action”.

Issues arising by promulgation of ordinances:

•     Bypassing of the legislature: There are instances that legislature is being deliberately bypassed to avoid debate and deliberations on contentious legislative proposals.

○      It goes against the ethos and spirit of democracy where debates are essential.

○      For example, the three ordinances on agricultural production and marketing were promulgated without deliberations in Parliament.

•     Infringement of separation of power: The power of the executive to issue ordinances goes against the principle of separation of powers as lawmaking is within the domain of the legislature.
•     Parliamentary discussion: Dialogue, debate and discussion in Parliament is essential for effective law-making.

○      For example, there was a need for discussion on the recent Government of National Capital Territory of Delhi (Amendment) Ordinance in the Parliament.

•     Cooperative federalism: The ordinances on the subjects in the Concurrent list goes against the spirit of federalism.

○      There should be proper discussion between Centre and States for the need of ordinance for the subjects under the concurrent list.

• Repromulgation: Repromulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes as observed by the apex court.

The President’s role to resolve such issues:

•     Checking Constitutionality of Ordinance: The recent instances of promulgation of ordinance on state subjects are beyond the powers of the Union Cabinet.

○      The President needs to inspect every ordinance for that matter.

•     Reconsideration of the Ordinance: President has the authority to return an ordinance once if he feels it requires reconsideration.

○      It becomes more important for the President to reconsider the ordinances which are promulgated again and again.

○      For example, the 2015 land ordinance was passed again and again.

•     Satisfaction of President: President should use his/her satisfaction that circumstances exist that require immediate actions on the part of the President, for the promulgation of ordinances.

○      It will act as a check on the executive not to bypass the legislature.

○  The President should not mechanically promulgate the ordinances without application of mind.

• Taking the interest of states into account: The President should ensure that States are participating in discussions while promulgating ordinance on the concurrent list.

However, as prescribed in the D.C. Wadhwa case (1986), the 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.