Question

The Supreme Court observed that the Ordinance making power has been used to such an extent that its use has become ‘fraud on the Constitution’. Critically examine this statement in the light of constitutional provisions, practices/conventions and judicial decisions.

Answer 1

Ordinance-Making Power in the Indian Constitution

Constitutional Provisions

The President and Governors of India can make ordinances under Articles 123 and 213 of the Indian Constitution, respectively. This power lets the government create laws when Parliament or the State Legislature is not in session, allowing for quick action in urgent situations.

Article 123: President's Ordinance-Making Power

• When: The President can issue an ordinance when House of Parliament is not in session.
• Conditions: The President must believe immediate action is necessary.
• Duration: The ordinance must be presented to both Houses of Parliament and will expire six weeks after Parliament reassembles unless it is disapproved earlier.

Article 213: Governor's Ordinance-Making Power

• When: A Governor can issue ordinances when the State Legislature is not in session.
• Conditions: The Governor must believe immediate action is necessary.
• Duration: The ordinance will expire six weeks after the State Legislature reassembles unless it is disapproved earlier.

Judicial Interpretation and Critique

Judicial Decisions

• R.C. Cooper v. Union of India (1970): The Supreme Court said that the President’s decision to issue an ordinance can be challenged in court.
• D.C. Wadhwa v. State of Bihar (1987): The Supreme Court criticized re-issuing ordinances without legislative approval, calling it a "fraud on the Constitution." This practice weakens the legislature and the democratic process.

Criticism and Abuse

• Frequency and Re-promulgation: The power has been overused, with some ordinances being repeatedly re-issued to avoid legislative approval. This was common in Bihar, where some ordinances were re-issued for years without legislative approval.
• Undermining Legislative Authority: Overuse of ordinances reduces the power and importance of legislative bodies, against the principle of separation of powers.

Fraud on the Constitution

Concept and Implications

The term "fraud on the Constitution" describes the misuse of constitutional provisions in ways that violate the Constitution's spirit, particularly regarding ordinance-making power.

• Subversion of Democratic Process: Excessive use of ordinances allows the executive to bypass the legislative process, essential for democracy.
• Erosion of Checks and Balances: Overuse of ordinances disrupts the balance of power between the executive and the legislature.
• Judicial Oversight: Courts can review the use of ordinance-making power to ensure it is not abused, but they can only act after the fact and cannot prevent initial misuse.

Conclusion

Ordinance-making power is essential for handling urgent issues when Parliament or the State Legislature is not in session. However, misuse, especially re-issuing ordinances, has been condemned by the judiciary as a "fraud on the Constitution."

To maintain the legislative process's integrity and uphold the separation of powers, ordinances should be used judiciously and rarely. Legislatures must carefully review ordinances, ensuring they are only used in real emergencies. Additionally, the judiciary must continue to check against abuse of this power to protect the constitutional framework and democracy.

Answer 2

This question is really asking how the Supreme Court has policed the misuse of ordinance-making power over time, culminating in the phrase "fraud on the Constitution." The clearest way to answer it is to trace the doctrine case by case rather than describe Articles 123 and 213 in isolation.

The power and its built-in limit:
Article 123 lets the President legislate by ordinance when Parliament is not in session and immediate action is needed; Article 213 gives the Governor the same power for a state legislature. Both are meant as emergency, stop-gap powers, not a parallel route to permanent law-making. Every ordinance must be placed before the legislature when it reassembles and lapses after six weeks unless disapproved earlier or replaced by an Act.

A.K. Roy v. Union of India (1982):
The Supreme Court first upheld the ordinance power as a genuine legislative power, co-extensive with the legislature's own law-making power, and held it was open to a narrow form of judicial review, though the President's or Governor's satisfaction would rarely be questioned. This case established that the power was real but not immune from scrutiny.

D.C. Wadhwa v. State of Bihar (1987):
Bihar had re-issued the same ordinances repeatedly, in some cases for over a decade, without ever placing them before the Assembly for a vote. The Supreme Court held that repeated re-promulgation without legislative approval is a colourable exercise of power and a fraud on the Constitution, since it lets the executive govern permanently through ordinances while bypassing the legislature the Constitution actually trusts with law-making.

Krishna Kumar Singh v. State of Bihar (2017):
A seven-judge Constitution Bench went further than Wadhwa. It held that an ordinance is not an independent, free-standing source of law; it is a conditional, emergency power meant to bridge a gap until the legislature can act. Re-promulgation without placing the ordinance before the House was again condemned as a fraud on the constitutional scheme. The Bench also held that an ordinance which lapses does not automatically leave behind permanent rights or liabilities; whether an action taken under a lapsed ordinance survives depends on a test of public interest and irreversibility, decided case by case, rather than being presumed to continue.

Evaluation:
Read together, the three cases show the doctrine tightening over time: Roy confirmed the power exists and is reviewable, Wadhwa named its abuse a fraud on the Constitution, and Krishna Kumar Singh closed the loophole of treating a lapsed ordinance's effects as permanent by default. The remaining risk is less about ordinances lapsing and more about legislatures with a dominant majority converting an ordinance into an Act with little real debate, which achieves the same bypass of scrutiny without technically breaking any of these rulings. That is a political discipline problem the courts cannot fully solve through judicial review alone.