Q. Write a detailed note on the Ordinance making power of President.

 

_{Note: this post is a part of our important question answer series on Constitutional Law. You can read other questions by clicking here.}

 

Introduction

The term ordinance is defined by the Oxford dictionary as an authoritative order. Ordinance is a decree or law promulgated by a state or national government without the consent of the legislature, which remains in the force for the shorter duration.

Ordinances were included in the Constitution of India from Government of India Act, 1935, which gave the authority to the Governor General to promulgate Ordinances.

 

Body

Article 123 of Indian Constitution deals with ordinance making power of president. It states as:

“If at any time, except when either of the house in the session, and president feel that circumstances are of such nature which require immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.”

An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament.

Following essentials are require to promulgate an ordinance:

I.                     When legislature is not in session: The President can only promulgate when either of the House of Parliament is not in session.

II.                   Immediate action is needed: The President though has the power of promulgating the ordinances but same cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.

III.                 Parliament should approve: after the ordinance has been passed it is required to be approved by the parliament within six weeks of reassembling. The same will cease to operate if disapproved by either House.

 

Satisfaction of the President:

In passing the ordinances, whether the personal satisfaction of president can be challenged in the court of Law? This question had arose several times.

I.                     Indira Gandhi, by passing 38^th Constitutional amendment in 1975, expressly excluded the subjective satisfaction of the president from the purview of judicial review.

II.                   As the result of change in the government, by passing 44^th Constitutional amendment act, 1978, this clause again deleted. It is provided that the power of President could be challenged in the Court of Law if it is based on bad faith, corrupt motive or had any mala fide intention.

III.                 In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the subjective satisfaction of the President is not completely non-justiciable.

IV.                In DC Wadhwa V. the State of Bihar (1987), It was argued that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.

V.                  Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.

VI.                In the case of R.C. Copper v. Union of India: in the said case popularly known as Bank Nationalization case, the Apex court while examining the constitutionality of Banking Companies Ordinance, 1969 which had sought to nationalize 14 commercial banks in India, it was held that President decision can be challenged on the ground that no ‘immediate action’ was required on his part.

 

Conclusion:

After examining all relevant cases, it can be concluded that ordinance making power of the president is not open to challenge in courts on each and every ground, but it is not the license to bypass the legislative powers. It should only be used when immediate action is required and parliament is not in session at that time.

 

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