The government would be courting legal trouble if it attempts to re-promulgate the ordinances.
In 1986, the Supreme Court judgment in D.C. Wadhwa versus State of Bihar declared that it was the constitutional duty of the public to approach the court against re-promulgation of ordinances in a massive scale as a routine measure.
The apex court held:- the power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and cannot be allowed to be ‘perverted to serve political ends’.
An ordinance is promulgated by the President on the Union Cabinet’s advice under Article 123 of the Constitution.
The judgment held that the apex court can adjudicate if the re-promulgation subverted “the democratic process which lies at the core of our constitutional scheme
The judgement also subjected people to be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive.
In such a scenario, it would be left to the Supreme Court to decide.
Supreme Court was recently stripped off its Collegium powers of judicial appointments by the National Judicial Appointments Commission
The uncertainty may also undermine the government’s surge for an investment-friendly atmosphere.
Few investors would like to gamble on such shaky grounds, banking their hopes on the continued survival of the government’s ordinances.
Mr. Kashyap said: Propriety demands that the ordinance should lapse if there is no meeting of minds in the legislature on its provisions.