November 11

ORDINANCE
MAKING
POWER OF
PRESIDENT
2017
SUBMITTED
BY :
MEHWISH
SUBMITTED TO :
KHALIL B.A.
DR. MOHAMMAD ASAD MALIK LL.B (H) 2nd
Year
(Regular)
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher DR.

MOHAMMAD ASAD MALIK who gave me the golden opportunity to do

ASSIGNMENT ON ‘ORDINANCE MAKING POWER OF PRESIDENT’ which also

helped me in doing a lot of Research and I came to know about so many new

things, I am really thankful to him. Secondly, I would also like to thank my

parents and friends who helped me a lot in finalizing this assignment within

the limited time frame.

- MEHWISH
KHALIL
 TABLE OF CONTENT

SERIAL No. CONTENT PAGE No.

1 Acknowledgement 2

2 Introduction 4

3 Ordinance 5

4 Difference btw 6-7

Law & Ordinance
5 Legislative power 8
of President
6 When can 9
President issue
Ordinance
7 Critical Outlook 10 - 16

8 Conclusion 17

9 Bibliography 18
ORDINANCE MAKING POWER OF PRESIDENT

INTRODUCTION

Ordinances are ephemeral laws that are promulgated by the President of India on the
recommendation of the Union Cabinet. They can only be issued when Parliament is not in
session. They enable the Indian government to take immediate legislative action. Ordinances
cease to operate either if Parliament does not approve of them within six weeks of reassembly, or
if disapproving resolutions are passed by both Houses. It is also mandatory for a session of
Parliament to be held within six months of passing an ordinance.

Under the Constitution, the power to make laws rests with the legislature. However, in cases
when Parliament is not in session, and ‘immediate action’ is needed, the President can issue an
ordinance. An ordinance is a law, and could introduce legislative changes.

The Supreme Court has clarified that the legislative power to issue ordinances is ‘in the nature of
an emergency power’ given to the executive only ‘to meet an emergent situation’. An example
of immediacy can be seen in the ordinance passed in 2011 to give IIIT - Kancheepuram the
status of an institute of national importance so that students could be awarded their degrees on
completion of their course.i

It is a power given to President of India under Article – 123 of Indian Constitution to cope with
emergency situations, if arising in State and Parliament is out of session. In this way, President
work of behalf of Parliament and can issue crucial ordinances.

In this assignment, we are going to discuss nature of ordinance and its difference from law.
When can president issue an ordinance and what it’s validity given by Constitution of India. We
will further observe the stand of Supreme Court of India on nature of ordinances promulgated by
President and it’s critical view.
 ORDINANCE

Decree or law promulgated by a state or national government without the consent of the
legislature, such as for raising revenue through new taxes or mobilization of resources during an
emergency or threat.

Local law such as a zoning ordinance enacted by the governing body of a city or municipality
which applies only within its boundaries. To have full force and effect of law, an ordinance must
not be in conflict with any higher law such as state or national law or constitutional provisions.ii

In India, President promulgate ordinance when parliament is not in session, by the virtue of
Article-123 of Indian Constitution which define legislative power of President.

The President issued the Criminal Law (Amendment) Ordinance on February 3, 2013. This
ordinance amends the Indian Penal Code, Criminal Procedure Code and the Indian Evidence
Act.
 DIFFERENCE BETWEEN LAW & ORDINANCE

Laws are actually rules and guidelines that are set up by the social institutions to govern
behavior. These laws are made by government officials that in some countries are elected by the
public to represent their views. In simple terms, laws are basically things that a person can and
cannot do. Ordinances are laws that are passed by lower-level jurisdictions in a country such as
municipal government. The municipal governments include city, town, village, borough and
county governments. Municipal governments have been provided with the power to enact laws
through a statute and state constitution.

In order to establish a society it must follow a set of rules and laws that help govern its smooth
running. The laws and rules are established to ensure that everyone is treated as the same. The
laws and rules ensure that each individual must follow a set of guidelines and if/she ends up
breaking any of those rules they must accept the consequences no matter their social standing or
position. The laws and rules used to maintain smooth and efficient functioning of the society.
Imaging a society with no rules, where a person will be free to do as he/she wishes. It will
unleash chaos and the society will fall. Laws and rules go hand-in-hand causing much confusion
over their definitions. To many people, including in legal terms, laws and rules are the same and
can be used simultaneously. However, these are different words and used in different contexts.

Laws are actually rules and guidelines that are set up by the social institutions to govern
behavior. These laws are made by government officials that in some countries are elected by the
public to represent their views. In simple terms, laws are basically things that a person can and
cannot do. It is enforced by government officials such as police officers, agents and judges. Laws
are ideas that must go through the process of checks, balances and votes in order for them to
become a law. However, the enactment of a law varies based on the government. In an
autocracy, the leader has the power to pass any law he wishes. In a democracy, the bill to enact a
law must be voted on by the different parts of the government. Laws must be obeyed by all,
including private citizens, groups and companies as well as public figures, organizations and
institutions. Laws set out standards, procedures and principles that must be followed. A law is
enforceable by the judicial system, i.e. those responsible for breaking them can be prosecuted in
court. There are various types of laws framed like criminal laws, civil laws, and international
laws. Breaking a law is a punishable crime and has drastic consequences such as hefty fines, jail
time and community service time.
 LEGISLATIVE POWER OF PRESIDENT

President can issue ordinance under Article – 123 of Constitution.

123. Power of President to promulgate Ordinances during recess of Parliament

(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate action, he
may promulgate such Ordinance as the circumstances appear to him to require

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of
Parliament, but every such Ordinance

(a) shall be laid before both House of Parliament and shall cease to operate at the expiration of
six weeks from the reassemble of Parliament, or, if before the expiration of that period
resolutions disapproving it are passed by both Houses, upon the passing of the second of those
resolutions; and

(b) may be withdrawn at any time by the President Explanation Where the Houses of Parliament
are summoned to reassemble on different dates, the period of six weeks shall be reckoned from
the later of those dates for the purposes of this clause

(3) If and so far as an Ordinance under this article makes any provision which Parliament would
not under this Constitution be competent to enact, it shall be void CHAPTER IV THE UNION
JUDICIARYiii
 WHEN CAN PRESIDENT PROMULGATE ORDINANCE

Article 123 of the Indian Constitution empowers the President to promulgate ordinances during
the recess of the Parliament. The ordinances are temporary laws having the effect of an act.

It is considered one of the important legislative powers of the President, however is subject to
limitations like

i. An ordinance may be issued by the President only when one House is in session.

ii. An ordinance may be made under circumstances which require immediate action.

iii. An ordinance can be made only on subjects on which Parliament can made laws and is
subject to the limitations, to which a Parliamentary law is subjected.

iv. An ordinance needs to be present before the Houses of Parliament who reassembles. An
ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament. If the
Houses reassemble on different date the period of six weeks is calculated from the later of those
dates. Without being approved by the Parliament and ordinance can last for a maximum period
of six months and six weeks. All acts done and completed under an unapproved ordinance will
lapse.

The President may withdraw an ordinance at any time. However, the President exercises the
power on the advice of the Council of Ministers headed by the Prime Minister. An ordinance
may have retrospective effect and may be modify repeal any act of Parliament or even another
ordinance. It may also amend or alter a tax law but never can be used to amend the Constitution.

This unusual power has been given to the President, so that the Executive can deal with a
situation of urgency.
 ORDINANCE MAKING POWER OF THE
PRESIDENT OF INDIA : A CRITICAL OUTLOOK

History of Ordinances

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. 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.

There were massive discussion and debates related to the Ordinance making power, some of the
members of the Constituent Assembly emphasized that this power of President is against the
constitutional morality and was extra-ordinary in nature, some argued that it should be left as a
provision which should be used during emergencies only.

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 38thConstitutional (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

R.C. Copper v. Union of India iv

In the case of R.C. Copper v. Union of India, 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.

A.K. Roy v. Union of India v

In the case of A.K. Roy v. Union of India, 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 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’.

S.K.G. Sugar Ltd. v. State of Bihar vi

In the case of S.K.G.Sugar Ltd v. State of Bihar, 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”.
Venkata Reddy v. State of Andhra Pradesh vii
In the case of T. Venkata Reddy v. State of Andhra Pradesh, 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.

K. Nagaraj v. State of Karnataka viii

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 Karnataka, 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.

S.R. Bommai v. Union of India ix

In the case of S.R. Bommai v. Union of India, 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 Justiciable and subject to
Judicial Review to challenge on the ground of mala fide.
State of Orissa v. Bhupendra Kumar Bose x
In case of State of Orissa v. Bhupendra Kumar Bose, 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.

D.C. Wadhwa v. State of Bihar xi

In 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.”

The power of judicial review of ordinances was once again discussed in year 1998 in the case
of Krishna Kumar Singh v State of Bihar, 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.
An ordinance would be made open to challenge on the following grounds:

 It constitutes colorable legislation; or

 It contravenes any of the Fundamental Rights as mentioned in our Constitution; or

 It is violative of substantive provisions of Our Constitution such as an Article 301; or

 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.
 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.

 BIBLIOGRAPHY

 BOOKS
 Constitutional Law - J.N. Pandey
 Indian Constitutional Law – M.P. Jain

 STATUTE
 Indian Independence Act, 1935

 WEBSITES
 www.lawoctopus.com
 www.indiankanoon.com
 www.legaldictionary.com

i
Rediff , http://www.rediff.com/news/report/must-read-all-you-wanted-to-know-about-ordinance/20130204.htm
ii
Business Dictionary , http://www.businessdictionary.com/definition/ordinance.html
iii
M.P. Jain , Constitution of India
iv
(1970 AIR 564)
v
(1982 AIR 710)
vi
(AIR 1974 SC 1533; (1974)4 SCC 827; p.832.)
vii
(1985 AIR 724.)
viii
(1993 (4) SC 27.)
ix
(AIR 1994 SC1918;p. 1969-70.)
x
(1962 AIR 945.)
xi
(1987 AIR 579.)