Ordinance making powers of the President: A critical analysis

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This article was written by Aishwarya Dhakarey a student of Symbiosis Law School, Pune

  1. Enabling Provisions

Article 123 of the Indian Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact the laws in the Parliament.[1]

An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate owing to the distribution of powers among the Union, State and Concurrent Lists. Thus, the following restrictions exist with respect   to the Ordinance making power of the executive:

  1. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
  2. Urgency: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’[ii].

iii.   Parliamentary approval: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate.  Another circumstance in which they will cease to operate is when resolutions disapproving the Ordinance are passed by both the Houses.

 Constitutionally, significant  issues that have been raised include judicial review of the Ordinance making powers of the executive; the necessity criterion  for ‘immediate action’ while promulgating an Ordinance; and the granting of Ordinance making powers to the executive, given the well established principle of separation of powers.

The provision is subject to abuse to serve the political means and ends.  As such, there can be infliction of fraud on the constitution by non application of mind by the President in most cases. In T Venkata Reddy v State of Andhra Pradesh[2], power to pass ordinance was said to be at par with that of passing laws by the legislatures.

The ordinance-making power of the executive should be  restrained to create a balance of power between the executive and the legislature and to check the abuse of the same.  The possibilities of the abuse seem to be endless .  Since the Constitution mandates that Parliament be called into session at least once every six months, ordinances have a de facto expiration period of approximately seven and a half months.[3]

Likewise, Article 213 empowers the governor of the state with similar powers as that of the president.    There are few issues surrounding the overall debate.

Firstly, there are cases wherein despite the absence of  furnishing of any adequate reason , the ordinances were promulgated.  One such instance was the Electricity Regulatory Commissions Ordinance which was promulgated on April 25, 1998, one day before the government of the day decided to convene the next session of Parliament. [4]The National Commission for Minority Educational Institutions (Amendment) Ordinance, 2006, was promulgated in January 2006, even though Parliament was to convene from February 16, 2006. [5]

However, the above hypothesis cannot lead to the conclusion that there were no instances where there was no exercise of power under the Article.  One such example is  the Indian Medical Council (Amendment) Ordinance, 2011, under which the government dissolved the Medical Council of India. 

  1. Judicial Review vis a’ vis Ordinance promulgation

In RC Cooper vs. Union of India[6] the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature

In A.K. Roy v Union of India[7] and R.C. Cooper v Union of India, the Supreme Court said that ordinance-making power was a legislative power given to the President and was not similar to the exercise of his executive powers. As such, ordinances are also “law” under Article 13.  Equally important here is to note that what was done in 1975 was undone in 1978. 38th Amendment added clause (4) in Article 123 stating   that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.[8] However, the 44th Amendment deleted the clause . As a breakthrough, it was the judgment of DC Wadhwa vs. State of Bihar that held that  if Ordinance making was made a usual practice without any apparent instance of urgency, the courts could strike down re-promulgated Ordinances.

III. Conclusion

It can be safely concluded that no President should be able to misuse the conferred power and there needs to be a stronger projection of judicial review to check the abuse. Article 85 mandates that the legislature shall meet at least twice a year and also that six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.[9]  Considering this, the maximum life of an ordinance cannot exceed seven-and-a-half months unless it is replaced by an Act of the legislature or disapproved by the resolution of the legislature before the expiry of that period or withdrawn by the President himself.  This provision though intended to be good, is again subject to misuse. If an ordinance is drawn  with a political motive, it is all likely to become a law. Critically speaking, the phraseology of the empowering provision can again be questioned as the words such as “subject to the satisfaction of the president” are very relative.  The honourable courts, however, have tried interpreting the provision on case to case basis as we see above in the plethora of judgments. But the question as to the interpretation is somehow still left open ended.  Another disturbing trend is the not so aligned judicial review of various cases on the subject. There needs to be lot of clarity on the same. The colourable exercise of power affects the constitutional morality whenever there is an abuse of the aforesaid power.

[1] The Constitution of India available at <http://indiankanoon.org/doc/1090693/> last accessed 6 January, 2016

[2] 1984 AIR 724

[3] Anirudh Burman, ‘Ordinance Route’ (Frontline, 9 August, 2013) <http://www.frontline.in/the-nation/ordinance-route/article4944717.ece> last accessed 6 January, 2016

[4] http://www.frontline.in/the-nation/ordinance-route/article4944717.ece

[5] Ibid

[6]  (AIR 1970 SC 564)

[7]  [1982] 1 S.C.C. 271

[8]  ‘Ordinance making power of the executive’, (PRS Blog, 27 September, 2013) <http://www.prsindia.org/theprsblog/?p=3088> last accessed 6 January, 2016

[9] The Constitution of India, 1950 available at <http://indiankanoon.org/doc/284788/> last accessed 6 January, 2016

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