Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances
Saumya Ranjan Dixit*
Volume 16 Issue 4 (2023)
Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic judicial review of the promulgating powers which obstructs a substantive scrutiny of ordinance-making powers. Therefore, to prevent the misuse of these provisions, this article suggests an application of the basic structure doctrine to the powers of promulgating ordinances. It argues that such an application would test the effect of the ordinance on the anvil of the basic principles of the Constitution instead of scrutinising the motive behind promulgation, which is advantageous for rigorous scrutiny of the promulgating powers. Moreover, it presents a framework laying down an independent substantive model of basic structure review with elaborate methods and arguments to apply the basic structure doctrine to the ordinances. Lastly, it urges us to adopt this basic structure review to preserve the foundational ideals and supremacy of our Constitution.