This article is written by Anushka Trivedi, on ordinance making power of the President of India.

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 38^th Constitutional (Amendment) Act, 1975 which has expressly excluded the subjective satisfaction of the President outside the purview of Judicial Review. Further in 44^th (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 India[1], 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 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 Bihar[3], 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 Pradesh[4], 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 Karnataka[5],  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 India[6], 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.

In case of State of Orissa v. Bhupendra Kumar Bose[7], 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 Bihar[8], 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.

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.

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[1] 1970 AIR 564.

[2] 1982 AIR  710.

[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.

[7] 1962 AIR 945.

[8] 1987 AIR 579.