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An Emerging Praxis of Judicial Review in President's Ordinance Making Power: A Legal Quagmire

An ordinance is a tool in the hands of the executive, and it contains the effect of a decree or law. The state or national government passes this without taking the due approval of the legislature. It is relevant to court the definition given in the Oxford dictionary, which defines an Ordinance as an "Authoritative Order".

Things like collecting revenue via new taxes on mobilising the resources in case of an emergency apprehension. For the enforcement to be effective, it should be essential to keep in mind that there shall not be any conflict with any existing higher laws such as constitutional provisions or other statutory provisions.

Article 123 e of the Indian Constitution entails the power of the president to promulgate an ordinance when both or either of the two houses of the parliament is not in function; therefore, it is clear that the issuance of the ordinance cannot take place in the parliament it is easy to comprehend that why such power has been bestowed upon the executive was limited to the dealings where the country needed immediate actions in the case of emergency.

History of Ordinances

The Traces of the ordinances have been found in the Government of India Act 1935. It has been said that this act provided the power to the Governor-General of that time to bring an ordinance in the case of need also. Sections 42 and 43 of this act mainly deal with the Governor generals Ordinance making power. It also says that it is only eligible to use the ordinance making power in the case of exceptional circumstances where immediate action is required.

Since then, several lengthy discussions and deliberations have concerned law-making management. Few members contended that search power goes against the principle of constitutional morality, and some others argued that such provision should be used only in emergency cases. 1

In India, separation of power has gained enough momentum Andaz, and thus, all the three branches have their different roles to play, and so the legislative authorities are the ones who are responsible for the law-making activities; therefore, it is crucial to ponder over the concept of the ordinance it is available at that point of time where the legislature of the parliament fails to make the law on a particular subject matter, or it may happen that the parliament it is not in the function in that specific point of time, therefore, to bring the law in force in such situations the power has been given to executive particularly to the president and governor to bring such law as necessary with the help of an ordinance to counter the case arrived out of emergency. There is no law on that subject matter to handle it. Overwhelming statistics are on record from the year the constitution was made. More than 700 ordinances have been passed.

Limitation of Ordinance making Power

So far, we have seen and understood the provisions that empower the President to grant the ordinance; why such power has been given to the president now, it is essential to understand whether such controls are absolute or some limitations imposed upon them. So it is necessary to see the domain where the ordinance can be made. It concerns any subject matter that the parliament has the power to legislate on. As the limitation is placed upon the legislative authority, certain restrictions concerning Order-making exist.3

Following are:
  • Promulgation of an ordinance can only be done by the president when either or both of the houses of the parliament are not in session.
  • The President shall be satisfied that there is a need to take immediate action before promulgating an ordinance.
  • The parliament takes approval after their re-assembly, or it shall cease to operate. In case of the passing of a resolution from both the houses disapproving the ordinance, it will cease to operate.

Satisfaction of the President 4

It would be essential to cover article 356 when there is a deliberation on the reviewability of satisfaction of the President under Article 123 since the similarity to a certain extent has been found in 356 also where the provision says that "if the president is satisfied�.. by the provisions of the Constitution".

To remove the ambiguity concerning the judicial review, Indira Gandhi's government brought the 38 amendment Act 1975, which is precisely the resident's satisfaction, out of the scope of Judicial review, which was followed by severe criticisms and then, later on, the 44th amendment came into existence which deleted the disputed clause in the 38th amendment and held that the power of Ordinance making could be challenged in the court of law only if it is based on some malafide intentions, corrupt motive and bad faith.

Important Judicial Dictums

  • R.C Cooper v. Union of India 5

    In this case 25th constitutional amendment Act which leads to curtailed the right of property and, in turn, granted permission to the government to acquire the land of an individual for public use and the same was challenged before the court of law along with the Banking Companies Ordinance 1969, which targeted to nationalise the 14 commercial banks in India. The court held that the president's decision to make ordinances could be reviewed by the court because there was no imminent need required for such actions.
  • A.K. Roy v Union of India 6

    In this case, the National security ordinance 1980, which dealt with some instances of preventive detention and its constitutionality, was challenged before the court of law. The supreme court pronounced that ordinance making power of the president, by no means, beyond the court's judicial review.
  • T. Venkata Reddy v State of Andhra Pradesh 7

    In this case, the Pradesh abolition of the post of part-time village offices Ordinance 1984 was in question. A significant concern in this question was that the Governor hadn't used his mind in the passing of the ordinance. Also, the regulation commenced, but the state government was against and disapproved. The law came into effect as soon as the president gave his consent, and it ceased to be operated as the state legislature quashed the same. One central question before the Supreme Court of India was whether the validity of an ordinance could be tested on the grounds on which the validity of judicial action or executive action is tested; while answering this question Court referred.

    To its earlier judgement given in the case of K Nagaraj v. State of Karnataka 8 and the court observed that the ordinance making power is also, to some extent, a legislative action, so the grounds used to challenge the law-making should be applied to challenge the validity of ordinance and not the feet of judicial action.
  • SR Bommai v. Union of India 9

    In this case, the court gave new directions concerning the ordinance's judicial review. The president's actions can be held to be taken in bad faith if it is found that such a decision has been taken without the relevant materials. The court has marked it under the category of obviously perverse. Therefore, the supreme court held that the power of the president under Article 356(1) to issue a proclamation is held to be justiciable. Consequently, it is subject to Judicial review if found on the mala-fide ground.
  • State of Orissa v Bhupendra Kumar Bose 10

    In this case, the court observed that the right and obligations that the ordinance has conceived come into effect immediately after the promulgation of the law. Suppose the legislative authorities want to extinguish those rights and applications. In that case, they have to bring proper legislation to do the same; if search ordinances are found to be a fraud on the constitution and contain abuse of power, then the status quo must be revived.

The Court, given certain situations when Ordinance can be e-mailed vulnerable what challenges following are:

  • When the colourable legislation has been found; or
  • If it is in contravention with any fundamental rights, mention part III of the constitution
  • It tries to violate any substantial portion of the constitution

An ordinance is deemed the president's legislative power; nonetheless, the issuance of the identical rest on the aid and advice of the council of ministers. Hence, it is called a law made by the executive. History is evident that the president has issued up to eight ordinances after the parliamentary sessions.

The government has used all the ordinances sometimes to facilitate good governance, like in the case of economic reforms during the time of liberalisation policy. Still, when this power is used again and again somewhere, it violates the spirit of the constitution's constitutional values. Some thinkers have quoted it as ordinance Raj, which is not desirable. I want to conclude my point by citing a relevant case in this regard DC Wadhwa v. the State of Bihar, where the supreme court, in 1987, vehemently opposed this practice and tagged it as a constitutional fraud.

From the above mentioned case laws judicial decisions and various provisions along with the historical background the author have analysed that the ordinance making power is relevant and essential at certain point of time as it has been mentioned in the constitution about it like at times when either or both the houses of Parliament are not setting and such laws which are of Paramount importance have to be passed or at the times of emergency.

But in contrast the various case laws referred give us the pretext that how this Ordinance making power which has been shown to the executive head of the country who is President and in state the Governor have misused the authorities under the Garb of urgency and the constitutional thinkers have I want about this long before Ordinance making power is nothing but the extension of a legislative power to the executive authority does in order to strike the balance it is very important that search Ordinance making power of the president must be subject to the Judicial review so that the judicial authorities can stop the unrestricted use of this vital power and can save the fundamental rights of the citizen and reinstate of the citizen and reinstate the duties and liabilities of the legislative and executive authorities.

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