JUDICIAL REVIEW OF ORDINANCES IN INDIA: SAFEGUARDING THE BASIC STRUCTURE IN THE FACE OF EXECUTIVE POWER

ABSTRACT: The issuance of ordinances by the government and its ensuing judicial examination has historically been a controversial topic in India’s constitutional dialogue. Recent developments, notably the Delhi (Civil Services) Ordinance of 2023, have rekindled discussions on the effectiveness and suitability of the judicial review processes established for such instruments. This study aims to critically examine the methods of judicial review of ordinances, specifically concerning the Basic Structure theory, a fundamental element of Indian constitutional law as established in “Kesavananda Bharati v. State of Kerala (1973).” The paper commences by delineating the constitutional framework before the “Kesavananda Bharati” verdict, emphasizing the imperative of protecting the Constitution from capricious modifications. It subsequently explores the post-Kesavananda period, during which the Supreme Court employed the Basic Structure test in its rulings to evaluate legislative and executive activities, therefore fortifying the sanctity of fundamental constitutional values. The debate centres on the analysis of judicial review mechanisms relevant to ordinances. This analysis utilizes the conceptual frameworks of negative and intermediary methods to review, as described by Professor Shubhankar Dam, to evaluate their relevance and sufficiency in the context of ordinances. These two methodologies—though varying in scope and application—function as mechanisms to guarantee that ordinances, especially those affecting essential constitutional principles, do not compromise the Basic Structure. The study presents a system for analyzing ordinances that is consistent with the ideas of the Basic Structure doctrine, based on a collaborative and nuanced analysis. The paper proposes a strong framework for judicial review to guarantee that ordinances, particularly those impacting fundamental constitutional principles, get thorough examination to preserve the Constitution’s integrity.