Ordinances and the Basic Structure Review: To Test or Not to Test?
Krishangee Parikh & Krishna Ravishankar*
Volume 16 Issue 4 (2023)
Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of discussion in the Indian context. Interestingly, due to the recently promulgated Delhi (Civil Services) Ordinance 2023, debates around the effectiveness of the current modes of judicial review of these instruments have recommenced. This paper aims to discuss these modes of judicial review while reading it along the trajectory of the Basic Structure doctrine and its principles. This shall further help us identify an appropriate review mechanism that can be applied to ordinances, especially those affecting the ideals of the basic structure. In order to arrive at this mechanism, the article shall first, deal with an overview of the Indian scenario pre-Kesavananda Bharati judgement, emphasising the urgent need to save the constitution from further arbitrary alterations. Furthermore, post the Kesavananda Bharati judgement, the Courts applied the basic structure review test in multiple cases. This sheds light on understanding its current ambit with regard to normal legislations and executive action. Thereafter, we would delve into the concept of negative and intermediary approaches of reviewing ordinances as provided by Professor Shubhankar Dam. By adopting a collaborative analysis, it shall provide an insight into the standard to be applied to ordinances under both these approaches, ensuring they are compliant with basic structure values, as proposed by us.