This article has been written by Akalya Shanmugam, a student of Government Law College (Coimbatore),TamilNadu Dr.Ambedkar Law University.

INTRODUCTION:

In India, the Constitution grants certain powers to the Executive, which includes the exercise of legislative powers under Article 35. This provision empowers the President to promulgate ordinances, which are temporary laws that have the same force and effect as an Act of Parliament. However, the exercise of legislative powers by the Executive through ordinance-making has been a matter of considerable debate and controversy, as it bypasses the normal legislative process and can be seen as a threat to the principle of separation of powers. This topic is of significant importance as it raises questions about the appropriate use of executive power and the need to strike a balance between expediency and democratic accountability

Article 35 of the Indian Constitution empowers the President to exercise the legislative powers of a State when the State legislature is not in session. This provision is meant to ensure that the State’s legislative work is not disrupted due to the absence of a functioning legislature. However, the exercise of these powers by the executive has been a subject of debate, with concerns raised about the potential misuse of power and its impact on the principles of federalism and separation of powers. In this context, it is important to understand the scope and limitations of the executive’s legislative powers under Article 35, and tArticle 35 (Draft Article 27) gives Parliament the exclusive power to make laws relating to Articles 16 (3), 32 (3), 33 and 34. Further, this Article enables the Parliament to prescribe punishment to offences under the fundamental rights part.

The Draft Article was debated on 9th December 1948.

The original Draft Article as introduced by the Drafting Committee gave the Parliament power to make laws related to any fundamental rights. However, the Chairman of the Drafting Committee moved an amendment to restrict this to specific fundamental rights under Articles 16 (3), 32 (3), 33 and 34. One member was concerned by this move: he argued that the amendment would dilute the legislative powers of the Parliament. In response, the Chairman of the Drafting Committee noted that through his amendment “only in specific matters that Parliament has been given this penal authority’.  His amendment merely reiterates the specific legislative power under Articles 16 (3), 32 (3), 33 and 34.The amendments moved by the Chairman of the Drafting Committee were accepted. The Assembly adopted the Article, as amended, on  9th December 1948.o assess its implications for the functioning of India’s democratic system.

One of the primary concerns about the exercise of legislative powers by the executive under Article 35 is that it could lead to the potential misuse of power. Since the President exercises these powers on the advice of the Council of Ministers, there is a risk that these powers may be used for political purposes or to further the interests of the ruling party. In such cases, the exercise of these powers may not be in the best interest of the State, and it could undermine the democratic principles of accountability and transparency.

Another concern is that the exercise of these powers could impact the principles of federalism and separation of powers. Since the State legislature is the primary body responsible for making laws for the State, the executive’s exercise of these powers could undermine the State’s autonomy and independence. Additionally, the separation of powers between the executive and the legislature could be weakened since the executive would be able to legislate without the involvement of the legislature.

Despite these concerns, the exercise of legislative powers by the executive under Article 35 has also been beneficial in some cases. It has allowed the executive to address urgent matters that require immediate attention, such as natural disasters or security threats, without waiting for the legislature to convene. Additionally, it has enabled the executive to respond quickly to changing circumstances and emerging challenges, which is critical for effective governance.

CASE LAWS:

There have been several cases where the exercise of legislative powers by the executive under Article 35 has been challenged before Indian courts. Here are a few notable cases:

S.R. Bommai vs Union of India (1994): In this case, the Supreme Court held that the President’s power under Article 356 to impose President’s rule in a State should be used sparingly and only when it is necessary to maintain constitutional order. The Court also emphasized that the President should not act on the advice of the Council of Ministers blindly and must satisfy himself that the situation warrants such action. The principles enunciated in this case are relevant to the exercise of legislative powers by the executive under Article 35 as well.

Ram Jawaya Kapur vs State of Punjab (1955): In this case, the Supreme Court held that the Governor’s power to promulgate ordinances is a legislative power, and it can be exercised only when the State legislature is not in session. The Court also observed that the Governor must be satisfied that an urgent situation exists which requires the promulgation of an ordinance.

State of Rajasthan vs Union of India (1977): In this case, the Supreme Court held that the Governor’s power to promulgate ordinances is not absolute and is subject to judicial review. The Court also held that the Governor’s satisfaction about the existence of an urgent situation can be challenged in a court of law.

These cases highlight the importance of ensuring that the exercise of legislative powers by the executive under Article 35 is based on sound principles of constitutional law and is subject to judicial scrutiny. The courts have emphasized that the exercise of these powers must be used sparingly, and the executive must be satisfied that an urgent situation exists, which requires immediate legislative action. Additionally, the courts have held that the exercise of these powers is subject to judicial review, and the courts can examine whether the executive’s satisfaction about the existence of an urgent situation is based on valid grounds.

CONCLUSION:

In conclusion, the exercise of legislative powers by the executive under Article 35 of the Indian Constitution is a delicate balance between the need to ensure the continuity of the legislative work of a State and the need to protect democratic principles. While the power enables the executive to respond to urgent situations promptly, there is a risk of potential misuse and an impact on the principles of federalism and separation of powers.

It is, therefore, essential that the exercise of these powers is judiciously used, and there must be adequate checks and balances to prevent any misuse. The principles laid down by the Indian courts in various cases emphasize the importance of ensuring that the exercise of these powers is subject to judicial review and scrutiny. The executive must satisfy itself that an urgent situation exists and must act in the best interest of the State and its people.

It is crucial to strike a balance between the need for swift action and the need to protect the principles of democracy, federalism, and separation of powers. With adequate safeguards in place, the exercise of legislative powers by the executive under Article 35 can be a useful tool to ensure the smooth functioning of the legislative process in a State.

REFERENCES:

1.Indian Constitutional Law, M.P. Jain, LexisNexis Publication.

2.Introduction to the Constitution of India, Dr. Durga Das Basu, 20th Edition Reprint 2011, LexisNexis Butterworths Wadhwa Nagpur Publication.

3.Constitutional Law, Mamta Rao, Eastern Book Company, Lucknow

4.S.R. Bommai vs Union of India, (1994) 3 SCC 1

5.Ram Jawaya Kapur vs State of Punjab, AIR 1955 SC 549Link: https://indiankanoon.org/doc/824602/

6. State of Rajasthan vs Union of India, (1977) 3 SCC 592 https://indiankanoon.org/doc/1048773/

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