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January 1

Ordinance making
Power of President. 2018
SUBMITTED BY ZUBIYA ROLL NO 63
KHAN TO DR. ASAD MALIK 3RD SEMESTER
Acknowledgement

Firstly, I would like to express my profound sense of gratitude towards the almighty
for providing me with the authentic circumstances which were mandatory for the completion
of my project.

Secondly, I am highly indebted to Dr. Asad Malik at Faculty of Law, Jamia Millia
Islamia University, New Delhi for providing me with constant encouragement and guidance
throughout the preparation of this project.

My cardinal thanks are also for my parents, friends and all teachers of law department
in our college who have always been the source of my inspiration and motivation without
which I would have never been able to unabridged my project.

Zubiya Khan
Ordinance making power of the President
Article 123 of the Indian Constitution grants the President of India certain Law
making 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 same limitations. Thus, the
following limitations exist:-

 When 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 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.

Ordinances promulgated from year 1950- 2008, are overwhelming in the areas
of Finance (129 in number), Labor (46), commerce & Industry (28), Home
Affair (102) and Law and Justice (29). Out of these a very few of them can be
classified under actual emergencies, and hence necessary as a constitutional
obligation.

While the number of Ordinances issued under the supervision of first, second,
third and fourth Lok Sabha which was 39, 20, 31, and 34 respectively. The
ordinances promulgated increased thrice in the Fifth Lok Sabha, ie. 93
Ordinances were promulgated.

The up-going trend was reversed by the Janta Dal which during their three year
term of governance promulgated only 34 Ordinances from 1977-1979. The next
two governments had promulgated an average number of 10 Ordinances per
year. The Narasimha Rao Government from year 1991-1996 had promulgated
an average of 21 ordinances per year and none of the ordinance had ever dealt
with either the corruption scam or with the prevailing political instability. In
fact none of them were re-introduced as Bill in the parliament. The National
Democratic Alliance (NDA) Government from year 1998-2004 had
promulgated an average of 14.6 Ordinances per year and later the UPA
Government from year 2004-2009 had promulgated an average of 6.8
Ordinances per year.

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 requires 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 clearly clarify the said ambiguity,
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 President could be challenged in
the Court of Law if it is based on bad faith, corrupt motive or had any mala fide
intention.

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. Later in case of Venkata Reddy v. State of Andhra Pradesh (1985) 3
SCC 198, the Apex court over ruled 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.
About 615 Ordinances were issued between the years 1952 to 2006, and out of
it only 1 can be reasonably justiciable, which was introduced by the Prime
Minister Moraji Desai in 1978- where the currency notes in denominations of
Rs.1000/5000/10,000 were demonetized-the reason given was Parliament was
not in session and it had to be done without letting people to know about it, and
it was one way to deal with corruption and inflation. If people had known about
it, the same thing would have been completely failed.

Out of 615 Ordinances, an average of 214 Ordinances were promulgated just 15


days before the Parliament was supposed to be in session while 261 were
promulgated within 15 days, when Parliament was ending its session. One of
the most outrageous moves was Indira Gandhi’s move to nationalize Banks
through an Ordinance issued by her.

Important Cases

In the case of R.C. Copper v. Union of India1, constitution validity of the


Twenty-fifth Amendment Act, 1971 was challenged which curtailed the right of
property of an individual and permitted the acquisition of the same by the
government for the public use, on the payment of compensation which has to be
determined by the Parliament and not by the court of law. So 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.

In the case of A.K. Roy v. Union of India,2, the Supreme Court while examining
the constitutionality of the National Security Ordinance, 1980 which was issued
to provide for preventive detention in certain cases, the Supreme Court argued
that the President’s power of making Ordinances is not beyond the Judicial
Review of the court. However, the Court was unable to explore the issues of the

11970 AIR 564.


2 1982 AIR 710.
case further as the ordinance of the President was replaced by an Act. The court
also pointed out the need to exercise judicial review over the President’s
decision only at substantial grounds and not otherwise at every ‘casual
challenge’.

In the case of S.K.G.Sugar Ltd v. State of Bihar3, it was held that promulgating
of an Ordinance by the Governor is purely upon the Subjective Satisfaction of
him and he is the sole Judge to consider the necessity to issue the Ordinance and
“his satisfaction is not a justiciable matter”.

In the case of T. Venkata Reddy v. State of Andhra Pradesh4, the petitioner


challenged the constitutional validity of the Andhra Pradesh Abolition of Posts
of Part-time Village Officers Ordinances, 1984. One of the grounds was that the
Ordinance is void on account of the lack of mind used by the Governor and
from the commencement of the same the state legislature was disapproving it.
The ordinance is said to take effect as soon as it is promulgated by the President
and ceases to operate by the legislative act.

One of the questions which were raised in the above mentioned case by the
court was: “whether the validity of an Ordinance passed can be tested upon the
similar grounds as to those on which an executive or judicial action is tested”.
In answering the question the Supreme Court cited its own earlier judgment
given in K.Nagaraj v. State of Karnataka5, and held that the Power of making
Ordinances is a legislative action so the same grounds as related to the law
making should be challenged than challenging the executive or judicial grounds.

Further in the case of S.R. Bommai v. Union of India6, in this case the scope of
Judicial Review was expanded as to where the court told that where the action
by the President is taken without the relevant materials, the same would be
falling under the category of “obviously perverse” and the action would be
considered to be in bad faith. The Supreme Court held that the exercise of
power by the President under the Article 356(1) to issue proclamation is

3
AIR 1974 SC 1533: (1974)4 SCC 827; p.832
4
1985 AIR 724.
5
1993 (4) SC 27.
6
AIR 1994 SC1918;p. 1969-70.
Justiciable and subject to Judicial Review to challenge on the ground of mala
fide.

In case of State of Orissa v. Bhupendra Kumar Bose7, the court held that the
rights and obligations which are created by the Ordinance came into effect as
soon as the Ordinance is promulgated and the same cannot be extinguished until
a proper legislature by a legislative body extinguishes those rights and
obligations of the Ordinances. However, where the Ordinances promulgated is
an abuse of power and a kind of Fraud on the constitution, then, the state
prevailing with such promulgation should immediately revive.

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 an
Article 301; or
4. Its 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 Bihar8, 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:

7
1962 AIR 945.
8
1987 AIR 579.
“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.”

The power of judicial review of ordinances was once again discussed in year
1998 in the case of Krishna Kumar Singh v State of Bihar9, 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.

Conclusion

In most of the cases Power of Ordinance making is a controversial topic and a


topic of discussion. It tries to disturb the balance between the executive as well
as legislative powers by bringing into the element of arbitrariness into the
Constitutional System and disturbing the rule of law. Whenever such an
ordinance making power is exercised by an Executive body it shows disregard
to the legislature. Till now only a few grounds are established to challenge the
validity of the Ordinances:

(a.) directly violates a constitutional provision,

(b.) president has exceeded his constitutional power,

(c.) President had made a colorable use of his power.