Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine

Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine

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Volume 16 Issue 4 ()

The limited decisions and commentary on the justiciability of ordinances have relied upon administrative law grounds. Given the constitutional origin of ordinances and the unique executive law-making they entail, there is significant scope for the application of principles of constitutional law to their review. This paper pitches the application of the basic structure doctrine in judicial scrutiny of ordinances. First, ordinances are broken down into their constituent executive and legislative elements to strip them of the immunities ordinary legislation enjoys from judicial review. Second, lessons are drawn from the application of the basic structure doctrine to executive action in S. R. Bommai v. Union of India (‘Bommai’) with support from the United Kingdom Supreme Court’s ruling R (Miller) v. Prime Minister/Cherry v. Advocate Gen. for Scotland. Thereafter, Bommai’s reasoning is enhanced with novel propositions and applied to ordinance-making powers. The rule of separation of powers is extended to form a new principle of tripartite equilibrium for a balance between the branches of government. Tripartite equilibrium further rationalises the application of the basic structure doctrine to ordinances. Lastly, a two-fold model of motive examination of ordinances is expounded to review the condition precedent of an ‘immediate need’ of the ordinance.

Cite as: Om Agarwal, Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine, 16 NUJS L. Rev. 1 (2023)