The Ordinance route and the absence of Parliament
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Context
The recent promulgation of the Supreme Court (Number of Judges) Amendment Ordinance has sparked debate, not just about increasing judicial strength to tackle pendency, but structurally about the executive's reliance on ordinances over parliamentary legislation. The editorial highlights the concerning trend of bypassing parliamentary deliberation, which is foundational to a parliamentary democracy, thereby reducing the legislature to a mere ratifying body. The core issue raised is the normalisation of executive dominance and the decline of genuine democratic debate in India's legislative process.
UPSC Perspectives
Polity
The power to promulgate ordinances is vested in the President under of the Constitution, intended solely as an emergency measure when Parliament is not in session and immediate action is required. However, the frequent use of this route, especially when a government has a comfortable majority, signifies a circumvention of the regular legislative process. The Constitution envisions Parliament as the primary arena for deliberation, where bills undergo scrutiny, debate, and amendments. Bypassing this process through ordinances undermines the Separation of Powers and the principle of Executive Accountability to the Legislature. The Supreme Court, in judgments like (1987) and (2017), has explicitly stated that the re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. UPSC questions frequently examine the misuse of ordinance-making power, its implications for parliamentary supremacy, and the Supreme Court's stance on this issue.
Governance
The decline of parliamentary substance, as noted by the author, is a significant governance concern. Indicators such as the rising frequency of ordinances, compressed time for debate, the progressive erosion of Question Hour, and a sharp decline in Bills referred to Parliamentary Standing Committees all point to institutional decay. Standing Committees are crucial as they provide a forum for detailed, less partisan scrutiny of complex legislation, often consulting experts and stakeholders. When Bills are pushed through without such scrutiny, the quality of legislation suffers, leading to poorly drafted laws that may face legal challenges or implementation hurdles. The normalisation of this bypass reduces the legislature from a deliberative body to a mere rubber stamp, characteristic of what scholars call Executive Dominance. A robust governance framework requires institutional reforms to restore Parliament's role, such as strengthening committee systems, ensuring minority voices are heard, and establishing clearer norms to prevent the arbitrary use of ordinances.
Judiciary
While the editorial focuses on Parliament, the context is the expansion of the Supreme Court's strength. The allows Parliament to increase the number of judges. Currently, the sanctioned strength is 34 (including the Chief Justice). The ordinance aims to increase this number to address the massive backlog of over 93,000 pending cases. However, increasing the judge strength is only a partial solution to Judicial Pendency. The structural issue lies in the fact that the Supreme Court, originally envisioned as a Constitutional Court dealing primarily with substantial questions of law, now acts largely as a regular court of appeal. Meaningful judicial reform requires addressing case management, infrastructure in lower courts, and perhaps structural changes like the creation of a National Court of Appeal to handle routine appeals, allowing the Supreme Court to focus exclusively on constitutional matters. UPSC mains often ask about the causes of judicial pendency and comprehensive strategies to improve the efficiency of the justice delivery system.