Introduction
In a democratic government, the legislative is in charge of creating laws, the administration is in charge of putting those laws into effect, and the judiciary is in charge of interpreting those laws. Their functions, however, do not exist in a black-and-white manner, and they do overlap. Because legislatures cannot be in session all year, the work of enacting laws is delegated to the executive branch. The executive can accomplish the work of legislation in two ways: through subordinate legislation and the ability to make ordinances.
During the recess of parliament, the President has the ability to publish Ordinances, according to Article 123 of the Indian Constitution. Article 213 of the Constitution gives governors comparable rights, however, there is a subtle distinction between the two articles in that some acts under Art. 213 require the President’s prior approval. The purpose of this research paper is to look into the executive’s power to make ordinances.
Legislative power is not the same as a legislative authority. It can only be used when both Houses of Parliament are not in session, allowing the administration to deal with a crisis.[1] Regardless of the notable complementarities of legislative powers exercised by the Legislature and the Executive, there is a large group of people in India who are either in favor of or against Ordinance, depending on whether they are in the Government or the Opposition. While some who defend Ordinance’s state explicitly that the factor is urgency and emergency, those who investigate Ordinances see this as undemocratic and accuse the Executive of deliberate intrusion into the Legislature’s legitimate domain. The accusations and counter-accusations in any scenario, the fact remains that the Indian Parliament is the supreme legislative body, representing the people’s sovereign will. Through path-breaking enactments, the Parliament has steered public governance, verbalized popular concerns, and obliged the fluctuating interests of diverse social groups, all in keeping with its position. Indeed, the Parliament has combined democratic procedures, induced social unification, and brought about significant changes in the functioning of important democratic institutions through its inherent law-making capacity. Furthermore, it has enabled the State to demonstrate that it is capable of dealing with the challenges of changing times.[2]
Background of Ordinances
The Government of India Act, 1935, which provided the Governor-General the authority to enact Ordinances, was incorporated into the Constitution of India. Sections 42 and 43 of the aforementioned legislation dealt with the Governor General’s ability to issue ordinances, which specifies that he can only utilize this power if “circumstances exist that deem it imperative for him to take prompt action.”
There was a lot of discussion and debate about the President’s power to make ordinances; some members of the Constituent Assembly argued that this power is against constitutional morality and is extra-ordinary in nature; others argued that it should be left as a provision to be used only in emergencies.
The Governor-General was given the ability to enact an ordinance under Section 72 of the Government of India Act, 1915. The Governor-General of India and the Governor of a province each have the right to enact ordinances under Sections 42 and 88 of the Government of India Act, 1935. There were numerous discussions and debates about the President’s power to issue ordinances; some members of the Constituent Assembly emphasized that this power is against constitutional morality and is unique in nature; others argued that it should be left as an arrangement to be used only in emergency situations.[3]
According to Article 361 of the Constitution, a President is not liable to any court for the exercise and performance of his office’s powers and responsibilities, or for any act done or purported to be done in the exercise and performance of such powers and duties. In accordance with Article 74(2), the Ministers’ advice is not enforceable by the courts. The only action that may be taken against a President is impeachment if he does not follow the Ministers advice on a critical issue.[4]
While moving for the consideration of the draught constitution, Dr. Ambedkar stated that the President of the Indian Union will be generally bound by his Ministers’ advice. He can’t do anything that isn’t in accordance with their counsel, and he can’t do anything that isn’t in accordance with their advice.[5]
The Power to Make Ordinances has a Wide Range of Applications
Article 123 authorizes the President to enact such ordinances as he deems necessary in the circumstances.
- Parliament is not in session in either house.
- He is certain that circumstances exist that necessitate rapid action on his part.
Although the clause nominally vests the power in the President, he acts on the recommendation of the Council of Ministers, hence the ordinance-making power is practically vested in the Central Executive.[6]
The President’s law has a fixed time limit and expires six weeks after Parliament is reassembled. This also demonstrates that the President’s role is limited to assisting the administration in dealing with unforeseen circumstances that may develop while the Houses of Parliament are not in session. Although the president’s power appears to be undemocratic, it is not because the executive is answerable to the legislature, and if an ordinance is promulgated in the name of misuse of power or abuse of power, the legislature can pass a resolution disproving the ordinance as well as a vote of no confidence in the president. The President, rather than being the repository of the Union’s legislative power, has been given the authority to legislate by promulgating an ordinance in response to extraordinary circumstances that necessitate prompt enactment of a law.
When both Houses of Parliament are in session, an ordinance cannot be promulgated (Article 123(1)). As a result, any ordinance passed while both Houses are in session is null and void. It may, however, be made when only one house is in session, because the law can be enacted by both Houses, not just one, and so it cannot meet the scenario requiring urgent legislation, necessitating the employment of the ordinance-making power.
After the ordinance is passed, it must be laid before each House of Parliament when it reconvenes (Art.123 (2)(a)). The ordinance will come to an end six weeks after the session of parliament has ended. When two Houses of Parliament meet on different dates, the six-week term is calculated based on the later of the two dates. It means that within six weeks of convening, Parliament must approve a statute to replace the ordinance. As a result, an ordinance’s maximum duration is 7.5 months, because under Art. 85, six months cannot pass between two sessions of Parliament, and the ordinance would expire six weeks after parliament meets.
If both Houses of Parliament vote a resolution rejecting an ordinance, it can be repealed even before the six-week period is up (Art. 123(2)(a)). It can be revoked at any time by the executive (Article 123(2)(b)). Parliament’s influence over the Central Executive’s ordinance-making power is thus ex post facto, that is, after the ordinance has been promulgated, rather than before. To ensure that the Executive uses the ordinance-making power only when circumstances require immediate action, both houses’ rules require that a Bill seeking to replace an ordinance be introduced in the house along with a statement explaining the circumstances that necessitated immediate action by an ordinance.[7]
The following are just a few forms, but they are by no means exhaustive:
- The choice of Prime Minister is limited by the requirement that he command a majority in the House;
- The dismissal of a government that has lost its majority in the House but refuses to resign; the dissolution of the House where an appeal to the country is required; and
- The dismissal of a government that has lost its majority in the House but refuses to resign. Even in this case, the action must be necessitated by the threat to democracy, and the appeal to the House or the Country must become an unmistakable requirement.[8]
The President’s Satisfaction
One of the most important things to remember when passing an ordinance is that the President must be satisfied; those conditions exist that necessitate prompt action on the President’s behalf. The Supreme Court has yet to define the President’s satisfaction, or even whether the President’s subjective contentment can be challenged in a court of law. To clear up the ambiguity, Indira Gandhi’s government passed the 38th Constitutional (Amendment) Act, 1975, which expressly excludes the President’s subjective satisfaction from Judicial Review.[9] To clear up the ambiguity, Indira Gandhi’s government passed the 38th Constitutional (Amendment) Act, 1975, which expressly excludes the President’s subjective satisfaction from Judicial Review. Further, the 44th (Amendment) Act of 1978 removed this language, stating that the President’s power might be challenged in court if it was exercised in ill faith, with a corrupt purpose, or with any mala fide intent.
The topic of judicial review of the President’s authority to promulgate the National Security Ordinance 198, which provides for preventive detention, was raised in the case of A.K. Roy vs. Union of India[10]. The Supreme Court did not rule on whether the president’s satisfaction under Art. 123(1) is justiciable. The court did state, however, that “judicial review is not completely barred with regard to the matter of the President’s pleasure.” Because the ordinance in question had been replaced by an Act of Parliament in this case, the Court saw no need to address the President’s approval to issue the ordinance in question. Additionally, the court believed that the evidence in front of it was insufficient to allow it to reach a decision on this issue.
Later, in Venkata Reddy v. State of Andhra Pradesh[11], the Supreme Court has concluded that because the power to make an ordinance is legislative rather than executive, its exercise cannot be questioned based on bad motivations, lack of application of mind, or the property, expediency, or necessity of the legislation. Ordinances have the same legal status as Acts. As a result, an ordinance should have all of the characteristics of a legislative act, including the immunities and limitations that come with it under the constitution. It can’t be considered an executive or administrative decision.’ When a statute violates constitutional restrictions, the courts can rule it unconstitutional, but they can’t look into the property of legislative power. Legislative discretion needs to be assumed to have been appropriately exercised.
Ordinances, on the other hand, are framed by the executive branch, which is described as a single, united institution. The President is the leader of the executive branch, which issues ordinances based on the advice of the ministerial council. The necessity of taking prompt action is the most critical requirement of ordinance promulgation. When there is a genuine requirement or necessity to promulgate the Ordinances, there will be no difficulty in verifying the President’s satisfaction.
In the matter of D.C. Wadhwa v. State of Bihar[12], the State of Bihar’s ordinance promulgation and re-promulgation were challenged since they were promulgated on a large scale. 256 ordinances were promulgated and then re-promulgated between 1967 and 1981, with some of them being in effect for up to 14 years.
The power to enact an ordinance is intended to address a unique issue; it should not be used to further an individual’s political goals. Though it is against democratic norms for an administration to write laws, the President is given this power to deal with emergencies, thus it should be curbed at some point.
The power of judicial review of ordinances was called into question again in the case of Krishna Kumar Singh v State of Bihar[13] in 1998, when the Supreme Court struck down a slew of ordinances, claiming that no specific reason for the President’s exercise of the ordinance-making power had been demonstrated. It went on to say: “There was also no reason given for enacting one ordinance after another.”
The scope of Judicial Review was broadened, with the court ruling that any action done by the President without the necessary materials falls under the heading of “clearly perverse,” and the action is regarded to be in bad faith. The President’s power to issue proclamations under Article 356(1) is justiciable and subject to Judicial Review if it is challenged on the grounds of mala fide.[14]
Though the President’s indiscriminate use of his ordinance-making power obliged the Apex Court to exercise some judicial scrutiny, the nature and scope of the court’s judicial review of the President’s or Governor’s ordinances remain unclear.[15]
The Following Limitations Exist
The impact of these Ordinances is the same as that of an Act of Parliament. In times of crisis, they allow the government to take swift legislative action. When either of the two Houses of Parliament is not in session, making it impossible for a single House to adopt and implement a legislation, Article 123 of the Indian Constitution allows the President of India significant law-making powers, including the ability to promulgate ordinances. Ordinances can cover any issue that the parliament has the authority to legislate on, and they are subject to the same restrictions.
The following are the restrictions on the power to enact ordinances:
- When the legislature is not in session: When both houses of Parliament or one of the Houses of Parliament are not in session, the President can only promulgate an ordinance.
- Immediate action is required: While the President has the ability to promulgate ordinances, he cannot do so until he is satisfied that conditions exist that force him to act quickly.
- Parliament must approve: After the President signs an ordinance, it must be adopted by Parliament within six weeks of the reassembly. If either house disapproves of it, the system will stop working.
- An ordinance can only be passed on matters that the Indian Parliament can legislate on.
- When an ordinance is passed, it cannot limit any citizen’s rights protected by Part III of the Indian Constitution (Fundamental Rights).
- The ordinance becomes null and void if both houses vote a resolution disapproving it.
Finance (129), Labour (46), Commerce & Industry (28), Home Affairs (102), and Law and Justice (102), are only a few of the many ordinances passed between 1950 and 2008. (29). Only a few of them may be characterized as true emergencies, necessitating the imposition of constitutional obligations.
The number of Ordinances issued under the supervision of the first, second, third, and fourth Lok Sabha, respectively, was 39, 20, 31, and 34. In the Fifth Lok Sabha, the number of ordinances promulgated was raised thrice, to 93.
In R.C Cooper v. Union of India[16], the Supreme Court declared that the President’s acts, including ordinances, are open to judicial review. “The 38th Amendment Act designated the President’s ordinance as final and conclusive, beyond judicial scrutiny; however, the 44th Amendment to the Indian Constitution overturned this and designated the President’s satisfaction as justiciable.”
Conclusion
The sole conclusion is that while an ordinance is described as a legislative power of the President, it is issued on the advice of the Council of Ministers and thus is considered legislation passed by the administration. While exercising the President’s executive power, the Ministers’ assistance and advice are required, and any action taken without the recommendation of the Ministers’ Council is unconstitutional and in violation of Article 74. (1). The president’s satisfaction is actually the satisfaction of the minister’s council, and a President’s or Governor’s pleasure must be based on facts and situations that demonstrate objectivity even in subjectivity. The Supreme Court limited the government’s ability to enact ordinances to ensure that those who wield it do not abuse it. The Constitution’s sanctity is based on the fact that the three arms of government are constantly at odds, allowing the bird of democracy to sing its beautiful song every day.
As our Constitution’s Founding Fathers put it, “established profound quality is anything but a distinctive opinion,” but it is one that should be fostered. In this way, regardless of the Government’s or Parliament’s methods for implementing such specific provisions, a real effort should be made to instill a sense of duty and constitutional morality.
References
[1] Arvind P Datar, Commentary on Constitution of India, Vol-1, 757 (2nd Ed. 2010)
[2] Dr V.K. AGNIHOTRI, THE ORDINANCE: LEGISLATION BY THE EXECUTIVE IN INDIA WHEN PARLIAMENT IS NOT IN SESSION, asgp.co, (July,24, 2020, 08 :12 PM), Accessed on 24 August 2021 (http://www.asgp.co/sites/default/files/documents/GCHPNUJIXHEHKOXKBBZRSKCFGCYVHS.doc)
[3] Amartya Bag, Ordinance making power of the President of India: A critical outlook, ipleaders, Accessed on 24 August 2021 (https://blog.ipleaders.in/ordinance-making-power-critical-outlook/)
[4] Constituent Assembly Debates, Vol. VII, p. 1142 Accessed on 24 August 2021 (http://164.100.47.194/loksabha/writereaddata/cadebatefiles/vol7.html)
[5] Ram Jawaya v. State of Punjab, AIR 1955 SC 549
[6] Vol. 1, M.P. Jain, Indian Constitutional Law, (6th Ed. 2013)
[7] Supra Note 6
[8] A.K. Roy v. Union of India AIR 1982 SC 724
[9] Sonali Chauhan, Ordinance Making Power of President: A Crown Without Jewels, Legal Service India, E-Journal, Accessed on 25 August 2021 (https://www.legalserviceindia.com/legal/article-5720-ordinance-making-power-of-president-a-crown-without-jewels-.html)
[10] AIR 1982 SC 710
[11] AIR 1985 SC 724
[12] 1987 AIR 579, 1987 SCR (1) 798
[13] WRIT PETITION (C) NO. 580 OF 1995
[14] S.R. Bommai V. Union of India, AIR 1994 SC 1918
[15] Durga Das Basu, Commentary on the Constitution of India 5509 (Wadhwa 8 th ed. 2007) (1950)
[16] 1970 AIR 564
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