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Fourth, Article 123 empowers the President to promulgate an ordinance only when urgent situations arise during the recess of Parliament. In the case of triple talaq, no such emergency came to light after the monsoon session ended. In fact, the triple talaq Bill passed in the Lok Sabha was already being debated across the country when the Centre, citing the reason of lack of consensus among parties, decided not to table the amended version of it in the Rajya Sabha during the monsoon session. This indicates that the Bill did not have the approval of the Upper House of Parliament. If despite this an ordinance resembling the untabled Bill has been promulgated, it lends credence to accusations that the legislature was undemocratically circumvented to serve the political interests of the ruling party.
The fact is, it makes no sense to bypass the parliamentary process because Article 123 (2) (a) demands that all ordinances be laid before both Houses of Parliament when Parliament reassembles. In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court ruled that tabling ordinances in Parliament (or a State Legislature) "is a mandatory constitutional obligation cast upon the government" because ultimately it is the legislature which determines "the need for, validity of and expediency to promulgate an ordinance." And failure to table an ordinance before the legislature "is an abuse of the constitutional process" and a "serious dereliction of the constitutional obligation." Therefore, one fails to understand the Union Cabinet’s wisdom in taking the ordinance route without discussing the triple talaq Bill in the Rajya Sabha.
A pointless ordinance
The power to promulgate ordinances is subject to legislative control, it said, and does not make the President or the Governor “a parallel source of law making or an independent legislative authority.” As is obvious, the pointlessness and the indefensibility of the triple talaq ordinance stands out from every coign of vantage. One hopes that the President will examine the legal infirmities that the ordinance suffers from and consider withdrawing it at the earliest.