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The data available for the promulgation of the ordinances clearly shows that the number ofordinances that have been enacted post the judgement in the Krishna Kumar Case is in nosense less than the ordinances that have been enacted during the years preceding the judgment.This is so despite the negative impact of the Krishna Kumar judgement on the utility that theexecutive ought to derive from the enactment of the ordinances. The authors seek to addressthis anomaly through the microeconomic models and present solutions through the lens of lawand economics. This paper conceptualises the solution to the problem of the misuse and theabuse of ordinancemaking power by proposing the formulation of the rules that shall seek toadd objective grounds to test if the ordinancemaking power has been used in a proper manneror it has been used with the mala fide intentions and illwill on the part of the executive. Thelevel of the delegation to the executive, that is, the scope of the decisionmaking with the,executive, has been analysed by proposing the total cost curve, which seeks to propose theoptimum level of stringency in the rules so as to allow the scope for the legislature to meet theemergency situations as well. This is sought to be achieved by framing of such rules for theexercise of the ordinancemaking power by the president and the governor, in such a way as tohave the objective grounds for the test of the need for the ordinancemaking power and also atthe same time have the scope and leeway to the legislature to decide, if the matter needs theenactment of the ordinance to meet the emergency that has arisen.
However, in certain emergency situations, this power to enact primary legislations has also been entrusted with the executive head of the state, i.e. the President, who under Article 123 of the Indian Constitution, may pass an ordinance which shall have the same effect as the legislation passed by the legislature. A similar power has been given to the governors of the state under Article 213 of the Indian Constitution.
Khyati Maurya and Saransh Sood (2025) "A Law & Economic Analysis Of Ordinance Raj In India: Navigating The Rule V Standard Debate In The Legal Design As A Mechanism To Reduce Political Cartelization", GNLU Journal of Law And Economics : Volume VII 2024, Issue I
Available at:
https://gnlu.ac.in/GJLE/Publications/A Law & Economic Analysis Of Ordinance Raj In India: Navigating The Rule V Standard Debate In The Legal Design As A Mechanism To Reduce Political Cartelization
