Ordinance Making Power
- Power to executive to make perform the task of legislation.
- Granted to the President and the Governors under Art 123 and 213 of the
Constitution, respectively
- Separation of powers?
Historical basis:
- Relic of foreign rule
- First conferred on the Gov-Gen of India by the Indian Councils Act, 1861: power
to issue ordinances in case of emergency relating to peace and good
government
- Later, the power given again to the Gov-Gen of India under Ss 42 and 43 of the
Government of India Act, 1935; also given to the Governor’s of Provinces under
Ss. 88 and 89 of the said Act
- Majority of ordinances passed under the provisions were to suppress
revolutionary activities, and to contain civil unrest in the context of
Non-Cooperation Movement and the Civil Disobedience Movement
Need for Ordinance making power:
- Q. Why was the power perceived to be a tool of oppression included in a
Constitution that wished to transform the destiny of a nation?
- Dr. B R Ambedkar:
“To provide a machinery for legislation during the period Parliament is not in
session, but an immediate action is required in some matter.
“...it seems to me that the only solution is to confer upon the President the power
to promulgate the law which will enable the executive to deal with that particular
situation because it cannot resort to the ordinary process of law because, ex
hypothesi, the legislature is not in session.”
- Therefore, ordinance making power is an exceptional arrangement predicated on
some form of legislative urgency.
Article 123
(1) If at any time, except when both Houses of Parliament are in session, the President
is satisfied that circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinances as the circumstances appear to him to
require.
- Time when ordinance may be issued - The President may promulgate
ordinances except when both houses of parl are in session.
- Satisfaction regarding circumstances
(2) An Ordinance promulgated under this article shall have the same force and effect
as an Act of Parliament, but every such Ordinance —
(a) shall be laid before both Houses of Parliament and shall cease to operate at the
expiration of six weeks from the reassembly of Parliament, or, if before the expiration of
that period resolutions disapproving it are passed by both Houses, upon the passing of
the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation.—Where the Houses of Parliament are summoned to reassemble on
different dates, the period of six weeks shall be reckoned from the later of those dates
for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which
Parliament would not under this Constitution be competent to enact, it shall be void.
- The power is coextensive with the leg power of Parl
- Power is limited by the same restriction which would limit the powers of
Parliament
Article 13(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
Article 367 (2) Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be
construed as including a reference to an Ordinance made by the President or, to an
Ordinance made by a Governor, as the case may be.
Questions:
1. When may ordinances be issued? - requirement relating to Parliament and to
satisfaction of President
2. What is the status of an ordinance? Is ordinance making power unrestricted? On
what matters can ordinances be passed? What limitations apply to ordinances?
3. What are the procedures of Parliamentary scrutiny that ensure that the President
does not become a parallel law-making body because of his ordinance making
power?
4. What are the manners in which ordinances may be brought to an end?
5. How may ordinances be converted into legislation?
6. How are ordinances misused by the executive branch?
7. Whether and how far may the power of judicial review be exercised over
ordinances? - procedural, substantive and satisfaction (38th and 42nd
Amendments of the Indian Constitution)
Class 2
Previous: Pre-fact requirements; Q1 and Q2 covered.
Post-fact requirement:
Article 123(2): laying the ordinance before both the Houses of Parliament
Venkat Reddy (1985) directory laying - theory of enduring rights
Krishna Kumar Singh (2017) mandatory laying - effect needs to be construed acc to the
test of public interest and constitutional necessity
D C Wadhwa (1989) - repromulgation - 123/213 cannot be used as substitute for
legislature - 2 cases when ordinances may be re-promulgated: volume of work & brevity
of time
(Effect of ordinances)
Manners in which ordinances may be brought to an end:
1. Mechanical expiration
2. Resolutions of both Houses disapproving the ordinance
3. Withdrawal by the President
(How can ordinances be converted into legislation?)
Judicial review of satisfaction:
RC Cooper v Union of India (1970) - space for judicial review of Presidential
satisfaction affirmed; Presidential satisfaction regarding existence of circumstances
suitable for issuance of ordinances not final
38th Amendment, 1975 - clause (4) added to Art 123
“Notwithstanding anything in this Constitution, the satisfaction of the President
mentioned in clause (1) shall be final and conclusive and shall not be
questionable in any court on any ground. ”
44th Amendment, 1978 - clause (4) removed from Art 123
A K Roy v. Union of India, 1982 - court read the removal of clause (4) from Art 123 as
a green signal to judicial review of Presidential satisfaction; however burden of proof lies
on the complainant to show that there could not have been any circumstances
necessitating the issuance of the ordinances before the burden can be cast on the
President to establish those circumstances
Krishna Kumar Singh v State of Bihar, 2017 - satisfaction of President not immune
from judicial review; the test is whether the satisfaction is based on some relevant
materials; the court will not determine the adequacy or sufficiency of the materials; it will
scrutinise whether the satisfaction in a particular case constitutes a fraud on the
constitution or was actuated by an oblique motive.
