Ordinance-Making Power of the President of India

The Constitution of India provides the President with the extraordinary power to promulgate ordinances under Article 123. This authority enables the President to make temporary laws when the Parliament is not in session, ensuring that urgent legislative requirements are addressed without delay. 

In the functioning of a democracy like India, the Parliament is the primary law-making body. However, there are times when urgent legislative action is necessary, but Parliament is not in session. To prevent governance from coming to a halt, the Constitution equips the President with the power to promulgate ordinances. These ordinances have the same force as laws enacted by Parliament but are temporary in nature. The ordinance-making power is a vital tool for maintaining the continuity and efficiency of the legislative process.

At the same time, since this power bypasses the ordinary legislative procedure, it comes with significant checks and balances to prevent misuse. Understanding this constitutional power in its entirety is essential for students, legal professionals, and policymakers alike.

Historical Background of Ordinance-Making Power of the President of India

The power of issuing ordinances is not a novel concept unique to independent India. Its origins trace back to the colonial period:

• Indian Councils Act, 1861: Following the 1857 Revolt, the British introduced this Act, granting the Viceroy the authority to issue ordinances during emergencies to maintain control and order.
• Government of India Act, 1935: This Act formally incorporated ordinance-making power for the Governor-General under Sections 42 and 43. The Governor-General could issue ordinances when “immediate action” was required, laying the foundation for the provision now enshrined in the Constitution.
• Constituent Assembly Debates: During the drafting of the Constitution, the inclusion of the ordinance power sparked debates. Some members viewed it as a necessary emergency provision to ensure governance during recesses of Parliament. Others expressed concern that it could undermine constitutional morality if overused or misused.

The framers ultimately included Article 123 to balance the need for swift action with adequate safeguards.

Constitutional Provisions on Ordinance-Making Power of the President of India: Article 123

Article 123 of the Constitution is the key provision empowering the President to promulgate ordinances. The article can be divided into two major parts:

Conditions for Promulgation (Clause 1)

• Parliamentary Recess: The President can issue an ordinance only when both Houses of Parliament are not in session or when at least one House is not in session, making it impossible for a law to be passed through the usual legislative process.
• Immediate Necessity: The President must be satisfied that there exists an urgent need for immediate action. This subjective satisfaction is a prerequisite for promulgation.

Legal Effect and Limitations (Clauses 2 to 4)

• Force of Law: An ordinance promulgated by the President carries the same force and effect as an Act passed by Parliament.
• Retrospective Effect: Ordinances can be given retrospective effect, allowing them to operate from a date prior to their promulgation.
• Amendment and Repeal: They can amend or repeal any Central Act or previous ordinance, except the Constitution itself.
• Fundamental Rights Compliance: Ordinances must adhere to the fundamental rights guaranteed under Part III of the Constitution.

Nature and Scope of Ordinance-Making Power of President

The ordinance-making power is an extraordinary legislative authority vested in the executive to meet exceptional circumstances. Some important features are:

• Temporary Legislation: Ordinances are temporary laws enacted during emergencies or urgent needs, intended to fill legislative gaps.
• Executive Initiative: The President issues ordinances on the advice of the Council of Ministers headed by the Prime Minister; the President cannot act unilaterally.
• Wide Legislative Competence: The power extends to any subject on which Parliament can legislate under the Union or Concurrent List.
• Retrospective Operation: Ordinances can validate actions taken before their promulgation.

However, ordinances are not substitutes for parliamentary legislation but are meant to enable prompt responses when Parliament is not functioning.

Limitations on the Ordinance-Making Power of President

The Constitution imposes various limitations on the ordinance-making power to maintain the supremacy of Parliament and protect democratic processes.

Parliamentary Approval

• An ordinance must be laid before both Houses of Parliament when they reconvene.
• It ceases to operate if Parliament disapproves it by resolution or if it is not approved within six weeks after Parliament resumes.
• This ensures the temporary nature of ordinances and Parliament’s ultimate control over lawmaking.

Judicial Review of President’s Satisfaction

• The President’s satisfaction regarding the urgency and necessity of promulgating an ordinance is subject to judicial review.
• In the landmark case R.C. Cooper v. Union of India (1970), the Supreme Court held that if the ordinance was promulgated with mala fide intent or to bypass parliamentary scrutiny on contentious issues, it could be challenged in court.
• The 38th Amendment Act, 1975, tried to exclude this judicial review, making the President’s satisfaction non-justiciable.
• However, the 44th Amendment Act, 1978, restored judicial review, reaffirming that courts can examine the President’s motive and reason for promulgating an ordinance.

Constitutional Boundaries

• Ordinances cannot amend the Constitution.
• They must comply with fundamental rights and other constitutional provisions.
• Any ordinance violating these provisions can be struck down by courts.

Duration of Ordinances

• The maximum lifespan of an ordinance is limited by the six-week period after Parliament reassembles.
• This is to ensure that ordinances remain temporary and do not replace the ordinary legislative process.

Landmark Cases on Ordinance-Making Power of the President of India

The Supreme Court and High Courts have examined the ordinance-making power on several occasions, laying down significant principles:

• R.C. Cooper v. Union of India (1970): The Court invalidated the Banking Companies Ordinance, 1969, on the ground that no “immediate action” was necessary, emphasising that the President’s satisfaction must be genuine.
• A.K. Roy v. Union of India (1982): The Court held that ordinance-making power is subject to judicial review on substantial grounds, though it did not settle the justiciability of the President’s satisfaction fully.
• T. Venkata Reddy v. State of Andhra Pradesh (1985): The Court observed that the satisfaction of the President or Governor in promulgating an ordinance is not subject to judicial review, overruling the A.K. Roy judgement to some extent.
• D.C. Wadhwa v. State of Bihar (1987): The Court condemned repeated re-promulgation of ordinances by the Bihar Governor, stating that continuous issuance of ordinances without legislative approval is unconstitutional and an abuse of power.
• Krishna Kumar Singh v. State of Bihar (1998): The Court struck down multiple ordinances for lacking any demonstrable necessity and reiterated that ordinance power should not be used as a substitute for legislative authority.

Abuse and Misuse of Ordinance Power

One of the major concerns with the ordinance-making power is its potential for abuse:

• Re-promulgation of Ordinances: Some governments have kept ordinances alive by allowing them to lapse and immediately re-promulgating them. This practice bypasses parliamentary scrutiny and undermines democratic processes.
• The Supreme Court in the D.C. Wadhwa case explicitly held such re-promulgation as unconstitutional, stating that the power to make ordinances is extraordinary and must be used sparingly and responsibly.
• Misuse includes passing laws on politically sensitive issues to avoid debate, circumvent opposition in Parliament, or extend executive authority unduly.

Difference Between President’s and Governor’s Ordinance Powers

Both the President and Governors have ordinance-making powers, but there are key differences:

Conclusion

The ordinance-making power is a necessary constitutional device designed to address urgent legislative needs when Parliament is not sitting. It ensures governance is not stalled due to procedural delays or legislative recesses.

At the same time, the power is temporary and subject to multiple safeguards to prevent executive overreach. Parliamentary approval, judicial review, and constitutional limitations ensure that ordinances complement rather than replace parliamentary legislation.

Proper use of this power enables the government to respond quickly to emergencies such as economic crises, natural disasters, or threats to public order. Misuse, however, risks undermining democratic principles and the balance of power between the legislature and the executive.