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Ordinance Making Power of President: A Crown Without Jewels?

This Research paper examines the Ordinance making power of the president in India. Ordinances are primarily just laws that are passed by the President of India, in times of need and urgency, to combat unforeseen circumstances- like the current pandemic.

These Ordinances have the same effect as an Act of Parliament. They enable the government to take immediate legislative action in desperate times. Article 123 of the Indian Constitution grants the President of India certain Lawmaking powers i.e. to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law.Ordinances may relate to any subject that the parliament has the power to make law, and would be having the same limitations.

Thus, the following limitations exist
  • When the legislature is not in session: the President can only promulgate when either of the House of Parliament is not in session.
  • Immediate action is needed: the President though has the power of promulgating the ordinances but the same cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
  • 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.

The President may withdraw an ordinance at any time. However, he exercises his power with the consent of the Council of Ministers headed by the President. The Ordinances may have retrospective effect and may modify or repeal any act of parliament or other ordinances. It may be used to amend a tax law but it can never amend the Constitution. 2

Historical Underpinning
Ordinances were incorporated in the Constitution of India from the Government of India Act, 1935, which gave the authority to the Governor-General to promulgate Ordinances. Section 42 and 43 of the said act dealt with Ordinance making power of the Governor-General which states that ‘If circumstances exist which render it necessary for him to take immediate action’, then only he can use this power.

The framers of the Constitution have taken into account Section 42 of the Government of India Act, 1935 as the model for the enactment of the Ordinance making power of the President. The framers of the Constitution were very much aware of the traumas and travails of the Ordinance making power given in that Act and were not restricted by any force not to chose to have or not to have Ordinance making power conferred to the President. 3

Taking into account the English and American Constitutions which don’t have such provisions, yet they opted for such provisions in good faith that the power would be exercised only in extraordinary situations and not for partisan gains. 4

Is the President bound by the aid and advice of the Council of Minister while promulgating an Ordinance? Article 74 of the Indian Constitution states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall in the exercise of his function, act under such advice. The 44th Constitutional Amendment inserted a proviso that the President may require the Council of Minister to reconsider the advice, and the President shall act according to the advice given after such reconsideration.

The President cannot function without a Council of Minister, nor can it exercise its executive power without the aid and advice of the Council of Minister. 5 On prima facie, it might seem that the ministerial advice is binding on the President, but legalistically is a directory in nature as it is not legally enforceable by court action.

Article 361 states that a President shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The advice of the Ministers is not enforceable by Court in virtue of Article 74(2). The only action that can be brought against a President is through the impeachment of the President if he does not follow the advice of the Ministers on a crucial matter. 6

Dr. Ambedkar while moving for the Consideration of the Draft Constitution said that The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing to the contrary to their advice nor can he do anything without their advice. 7

Further, it has been ruled that President is only the Nominal head or constitutional head of the executive with the real executive powers is vested in the Ministers or the Cabinet. 8 The aid and advice of the Ministers are mandatory while exercising the executive power of the President, and any such act without the advice of the Council of the Ministers shall be unconstitutional as being violative of Article 74(1). 9 However, under certain circumstances, the President may act without the advice of the Council of Ministers.

Some of the circumstances though not exhaustive include situations like:
  1. the choice of Prime Minister restricted through this choice is by paramount consideration that he should command a majority in the House
  2. the dismissal of a Government which has lost its majority in the House but refuses to quit the office,
  3. the dissolution of the House where an appeal to the country is necessitated, although in this area the Head of State should avoid getting into politics and must be advised by the Prime Minister who will ultimately take responsibility for this step. Even here the action must be compelled by the jeopardy of democracy and the appeal to the House or the Country must become blatantly obligatory. 10

Satisfaction of the President
One of the essentials to be kept in mind while passing an ordinance is that the President should be satisfied; that circumstances exist that require immediate actions on part of the President. The apex court has not yet defined ‘satisfaction of the President’ and even whether the subjective satisfaction of the President can be questioned in the Court of Law. To clarify the said incertitude, Indira Gandhi led Government passed the 38th Constitutional (Amendment) Act, 1975 which has expressly excluded the subjective satisfaction of the President outside the purview of Judicial Review. Further in 44th (Amendment) Act, 1978 deleted this clause, holding that the power of the President could be challenged in the Court of Law if it is based on bad faith, corrupt motive, or had any mala fide intention. 11

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. 12 Later in the case of Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex court overruled its own decision and held that the Satisfaction of the President cannot be called in question in the Court of law and is out of Judicial Review. An ordinance would be made open to challenge on the following grounds
  1. It constitutes colorable legislation; or
  2. It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
  3. It is violative of substantive provisions of Our Constitution such as Article 301; or
  4. It retrospectively is unconstitutional.

Ordinances are however framed by the executive body which is said to be a single, unified entity. The President is the head of the executive body who promulgate ordinances on the advice of the council of ministers. The most important requirement of the promulgation of the ordinances is the necessity to take the immediate action. Then there will be no difficulty in ascertaining the satisfaction of the President when there is real need or necessity in promulgating the Ordinances.

In further the case of D.C. Wadhwa v. State of Bihar, the State of Bihar’s promulgating and re- promulgating ordinances were challenged as there was promulgation of the same in massive scale. Between the year 1967-81, 256 ordinances were promulgated and then re-promulgated and some among them remain into existence for up to 14 years.

Chief Justice P.N. Bhagwati observed:
The power to make an ordinance is to meet an extraordinary situation and it should not be made to meet political ends of an individual. Though it is contrary to democratic norm for an executive to make a law but this power is given to the President to meet emergencies so it should be limited in some point of time. 13

The power of judicial review of ordinances was again in question in the case of Krishna Kumar Singh v State of Bihar in 1998, in this case the Supreme Court struck down many number of ordinances stating that no particular basis for the exercise of the Ordinance making power of the President had been shown. It also stated: There was also no explanation offered for promulgating one ordinance upon another.

Though the sheer profligacy in ordinance making power of the President had compelled the Apex Court to perform some judicial review, there is still no clarity on the nature and extent of the judicial review of the court over the ordinances made by the President or the Governor. 14

Conclusion
The only conclusion is that An ordinance is described as a legislative power of the President; however, it is issued on the advice of the council of ministers and is hence considered to be a law made by the executive. The aid and advice of the Ministers is mandatory while exercising the executive power of the President, and any such act without the advice of the Council of the Ministers shall be unconstitutional as being violative of Article 74(1). 15 The satisfaction of the the president is actually the satisfaction of the council of the minister and the satisfaction of a President or a Governor must be based on such facts and circumstances which show objectivity even in subjectivity.To make sure that the power isn’t misused by the ones who bear it, the Supreme Court limited the government’s power to issue ordinances. The sanctity of the Constitution rests on the fact that there be a never-ending tussle amongst the three branches of the government, so that the bird of democracy may sing its beautiful song all day.

Citations:
  1. *
  2. Constitution of India, 19503 Constituent Assembly Debates, Vol. VIII; p. 719
  3. Constituent Assembly Debates, Vol. VIII, p. 213-217
  4. See Jain, supra note 12, at 153.
  5. See Jain, supra note 12, at 154.
  6. Constituent Assembly Debates, Vol. VII, p. 1142
  7. Ram Jawaya v. State of Punjab, AIR 1955 SC 549
  8. U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002
  9. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192.
  10. A.K. Roy v. Union of India AIR 1982 SC 724
  11. Supra note 11; pg 710, 720
  12. D.C. Wadhwa v. State of Bihar AIR 1987 SC 579; p. 588-590
  13. MP Jain, Indian Constitution Law Vol I 206-207 (Wadhwa 5 th ed. 2003) (1962).
  14. Durga Das Basu, Commentary on the Constitution of India 5509 (Wadhwa 8 th ed. 2007) (1950).
Written By: Sonali Chauhan -  2nd Year Student Of B.A. LL.B., MDU CPAS, Gurugram, Haryana.
Email:[email protected]

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