LEGISLATIVE POWER OF EXECUTIVE

-ORDINANCE 

SUBMITTED TO

MS.​. ​Madhurima De Sarkar,

Associate Professor,

FACULTY: ​Constitutional Governance-II

SUBMITTED BY

Neelam Thakur
SEMESTER-IV; SECTION-C

ROLL.NO.-88

SUBMITTED ON- 30 th April, 2017

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 TABLE OF CONTENTS 

ACKNOWLEDGEMENTS 3

INTRODUCTION 4 

OBJECTIVES 5

RESEARCH METHODOLOGY 5

CHAPTER -1

CONCLUSION 11 
BIBLIOGRAPHY 12  

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 ACKNOWLEDGEMENTS

This project is a result of sheer hard work and dedication. I would like to pay my heartfelt
gratitude to my respected faculty ​Ms. Madhurima de Sarkar for providing such a
challenging topic. If he had not shown faith in me, I don’t think this project would have been
reality. He guided me at every footstep and providing me wholesome help, wherever I
required.

I would also like to say thanks to entire HNLU administration for allowing me to use
whatever the facilities available throughout the campus.

Lastly, from the very outset, I was encouraged by my friends and classmates in the right
direction, so that I can focus on the task.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

Neelam Thakur,

Roll No. 88,

Section C, Sem IV

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 INTRODUCTION

The second but most powerful organ of the government is the Executive. It is that organ
which implements the laws passed by the legislature and the policies of the government. The
rise of welfare state has tremendously increased the functions of the state, and in reality of the
executive. In common usage people tend to identify the executive with the government. In
contemporary times, there has taken place a big increase in the power and role of the
executive in every state.

What is Executive?
The term ‘Executive’ has been defined both in its broad and narrow forms. In its broad form,
it is taken to mean all the functionaries, political power-holders (Political Executive) and
permanent civil servants who undertake the execution of laws and policies and run the
administration of state .

In its narrow form, it is taken to mean only the executive heads (ministers i.e. the political
Executive), who head the government departments, formulate the policies and supervise the
implementation of the laws and policies of the government. In the narrow form, the civil
service and its administrative functions are not included in the realm of the Executive.

Traditionally, only the narrow meaning used to be accepted by the political scientists.
However, in modern times, the executive is defined in its broader form and it covers both the
Political Executive as well as the Civil Service

Legislative power of the central executive can be discussed under the following head:

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1) Participation of the executive in the legislative process.

2) Power of the rule- making under the constitution

3) Power to proclaim an emergency ; and

4) Power to make ordinances .

Chapter -1

A) Participation of the executive in the legislative process

The council of Ministers being an integral part of parliament participates intimately in the
legislative process, and discharges several important functions in relation to
parliament.This concept is underlined by making President a component part of
Parliament .The executive’s power to convene and prorogue parliament ,to dissolve Lok
Sabha,presentation of Bills to Parliament and the requirement of Presindential assent for
transforming bill passed by the two houses into an act, are some of the indicia which
denote the intimate role played by the Executive in relation to the legislative process.

Because the government enjoys majority support in Lok Sabha, no bill is passed by the
House unless the government supports it.Therefore , a private members’s bill has no
chance of getting through the house without government support .

Further , several provisions in the constitution require prior recommendation of the

President for introducing lesislation on some matters in a house of Parliament ,as for
example –

i) President recommendation is required to introduce in either House a Bill for the

formation of new states or alteration of areas boundaries or names of existing
States.

ii) A money Bill cannot be introduced without the recommendation of the President

iii) President’s recommendation is required for consideration by a House of a bill

involving expenditure from the consolidated fund of India.

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 B) RULE MAKING

Several constitutional provisions confer rule-making powers on the central

Executive enabling it to prescribe detailed provisions for several matters, as for
example ;

a)authentication of orders and instruments made and executed in the name of the
President.

b)the more convenient transaction of the government ‘s business.

c)dual membership of parliament and State Legislatures.

d)consulation with the U.P.C.S regarding appointment of officials of the supreme

court.

C) DECLARATION OF EMERGENCY

In certain contigenncies ,the Central Executive has power to proclaim emergency . The
declaration of an emergency effects several important changes in the normal working of the
Constitution .

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 RESEARCH METHODOLOGY

Research Methodology adopted in completion of this project is mainly Doctrinal in nature.

Secondary sources such as Books and journals have been used widely in completion of this
project

OBJECTIVES
● To study the Legislative power of executive – ordinance

● Study of Legislative power of central Executive under various heads.

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 ​Chapter -2

ORDINANCE – MAKING POWER

The Central Executive has Power to issue ordinance and thus promulgate laws for a short
duration . The technique of issuing an ordinance has been devised with a view to enabling the
Executive to meet any unforeseen or urgent situation arising in the country when parliament
is not in session, and which it cannot deal with under the ordinary law.
Ordinarily, under the constitution , the president is not the repository of the legislative power
of the union . This Power belongs to Parliament .but, with a view to meet extraordinary
situation demanding immediate enactment of laws , the constitution makes provision to
invest the President with legislative power to promulgate ordinances. An ordinance is only a
temporary law.The executive in Britain or The U.S.A enjoys no such power .
Article 123 empowers the Presidnet to promulgate such ordinances as the circumstances
appear to him require when-
(1) Both Houses of Parliament are not in session: and
(2) He is satisfied that circumstances exist which render it necessary for him to take
immediate action.
The provision confers the power formally on the president: but as already stated , he acts
in this matter, as he does in other matters, on the advice of the council of ministers and ,
the supreme court has stated; “The ordinance is promulgated in the name of the President
and in a constitutional sense on his satisfaction: it is truth promulgated on the advice of
his council of ministers and on their satisfaction
The power to issue an ordinance is legislative power. An ordinance issued by the
President Partakes fully of the legislative power.
Issues about ordinance making Constitution has provided separation of power between
legislature and executive. Through ordinance route executive creates instability about this

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separation. Satisfaction of President Ordinance can be promulgated only when he is
satisfied that circumstances exist for the same. In Cooper case (1970) Supreme Court held
that his satisfaction can questioned on the ground of malafide. In other words his
satisfaction can be questioned on the ground that he has deliberately prorogued the
parliament to bypass the legislative route on a controversial subject. Recent remarks by
President Dr. Pranab Mukherjee ‘‘ a noisy minority cannot be allowed to gag a patient
majority”, clearly shows the deadlock created due to adamant behaviour of opposition
parties. Constructive debates in parliament have been replaced by intentional deadlocks
created by opposition parties. Thus opposition party needs to play a constructive role in
the house of the parliament. Number of days the Members of Parliament meet, has been
reduced drastically to allow debates to take place on controversial issues. Therefore
number of days parliament houses meet should be increased. So giving space to
opposition party by the ruling party and increasing the number of days members of
parliament meet.
An ordinance is to be promulgated when the President or rather the central executive, is
satisfied that circumstances exist which render it necessary to take immediate action
whether or not circumstances exist which make the promulgation of an ordinance
necessary is a matter to be decided by the executive in its subjective satisfaction.whether
justification is non – justiciable or subject to judicial review on any ground still remains
an open question
Section 72 of the Governmnet of India Act 1935, authorized the Governor –General to
make and promulgate ordinances for the peace and good government of british India “in
cases of emergency”

Discussing this provision in;

1) bhagat singh v. King Emperor​, Lord Dunedin observed “who is to be judge of

whether a state emergency exists ? A state of emergency is something that does not
permit exact definition.
2) In ​Lakhi narayan v. state of bihar , the federal court had observed that whether the
requisite circumstatnces existed for promulgating the ordinance was a matter which is
notwithin the competence of courts to investigate.

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3) In ​King –Emperor v.benoari Lal, ​the privy council emphasized that the governor
–general was not required by the constitutional provisions to state that there was an
emrgengency or what the emergency was , either in the text of the ordinance or at all,
and assuming that he acts bona fide and in accordance with his statutory powers it
cannot rest with the courts to challenge his view that the emergency exists”.
4) In ​S.K.G. sugar Ltd. V. State of Bihar ​the supreme court stated as regards
governor’s satisfaction to make an ordinance under article 213( which is similar to
article 123) that the necessity of immediate action and of promulgating an ordinance
is a matter purely for the subjective satisfaction of the governor.
5) A.K Roy v. Union of India , ​the question of judicial review of the president’s
satisfaction to promulgate the National security Ordiance , 1980, providing for
preventive detention was raised . The supreme court left the question open whether
the satisfaction of the President under art. 123 (1) is justiciable or not .
6) In ​T Venkata Reddy ​vs.​ State of Andhra Pradesh (1985), the Court held that the
motives behind the exercise of this power cannot be questioned, just as is the case
with legislation by the Parliament and state legislatures.
7) In ​DC Wadhwa ​vs.​ State of Bihar (19​87), ​DC Wadhwa case (1987) judgement by
Supreme Court dealt with the issue of ordinance. The governor of Bihar issued 256
ordinances between 1967 and 1981 and life of these ordinances ranged between 1 to
14 years. Court held that repromulgation of ordinances with the same text, without
giving any chance to house to pass it, would amount to violation of the constitution,
thus these ordinances can be struck down. Finally court held that power given to
president to deal with extraordinary situation can be used as a substitute for the
legislative power of the state assembly
the Supreme Court held that courts could strike down re-promulgated ordinances.
8) The constitutional beach of the supreme court has disapproved the view expressed in
the ​State of Rajasthan v. union of India (supra) ​and refirrmed the ratio in bommai
case that the subjective satisfaction of a constitutional authority including the
governor , is not exempt from judicial review .
The ordinance cannot be promulgated when both houses of parliament are in
session.[art.123 (1)]. Accordingly , an ordinance made when the two Houses are in
session is void . It may , however , be made when only one house is in session , the

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 reason being that a law can be passed by both houses and not by one House alone, and
the ordinance revoked .
The executive’s ordiance making power is not unrestrained an ordinance can remain
in force only for a short duration and is brought under the parliamentary scrutiny at
the earliest possible opportunity .

therefore ,the ordinance – making power is vested efectively in the central Executive. As
A Director owes fiduciary duties towards the company, and not to individual
shareholders, creditors (other than during winding up when their interest has to be taken
care of) or fellow Directors. These generally consist of the following:

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 Conclusion

It can be safely concluded that no President should be able to misuse the conferred power and
there needs to be a stronger projection of judicial review to check the abuse. Article 85
mandates that the legislature shall meet at least twice a year and also that six months shall not
intervene between its last sitting in one session and the date appointed for its first sitting in
the next session. Considering this, the maximum life of an ordinance cannot exceed
seven-and-a-half months unless it is replaced by an Act of the legislature or disapproved by
the resolution of the legislature before the expiry of that period or withdrawn by the President
himself. This provision though intended to be good, is again subject to misuse. If an
ordinance is drawn with a political motive, it is all likely to become a law. Critically
speaking, the phraseology of the empowering provision can again be questioned as the words
such as “subject to the satisfaction of the president” are very relative. The honourable courts,
however, have tried interpreting the provision on case to case basis as we see above in the
plethora of judgments. But the question as to the interpretation is somehow still left open
ended. Another disturbing trend is the not so aligned judicial review of various cases on the
subject. There needs to be lot of clarity on the same. The colourable exercise of power affects
the constitutional morality whenever there is an abuse of the aforesaid power

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 BIBLIOGRAPHY

Books Referred​-

➢ M.P JAIN INDIAN CONSTITUTIONAL LAW 7​th​ EDITION

➢ Dr. J. N. PANDEY

Websites Referred-

➢ www.ordinance-making-powers-of-the-president.com
➢ https://www.google.co.in/?gfe_rd=cr&ei=yuYEWdT6Eu_s8Aecj4Ew#q=ordinance+
making+power+of+president+in+india

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