The ordinance-making power of the President in India is derived from Article 123 of the Constitution. This provision empowers the President to promulgate ordinances when both Houses of Parliament are not in session, and the President is satisfied that immediate action is necessary due to unforeseen or urgent circumstances.
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The Supreme Court, in the case of R.C. Cooper v. Union of India, clarified that while the ordinance is promulgated in the name of the President, it is done so on the advice of the Council of Ministers, indicating that the effective exercise of this power lies with the Central Executive.
Furthermore, the judiciary, in the case of A.K. Roy v. Union of India, affirmed that ordinances issued by the President possess a legislative character and are made in the exercise of legislative power. These ordinances have the force of law until they are replaced by subsequent legislation enacted by Parliament.
It's important to note that ordinances must be approved by Parliament within a specified period after it reconvenes, failing which they cease to have effect. This power bestowed upon the President is unique to the Indian constitutional framework and is not found in other democratic nations like Britain or the United States.
SATISFACTION OF THE ORIDNANCE MAKING POWER OF THE PRESIDENT
The satisfaction of the President in ordinance making in India is a contentious issue that has been shaped by constitutional provisions and judicial interpretations over time.
Article 123 of the Constitution grants the President the authority to promulgate ordinances when circumstances necessitate immediate action and both Houses of Parliament are not in session.
The discretion to determine the existence of such circumstances lies with the President or the Central Executive.
This subjective satisfaction has been a subject of debate regarding its justiciability in courts.
Historically, under the Government of India Act, 1935, similar provisions existed granting the Governor-General the power to promulgate ordinances for emergencies. Cases like Bhagat Singh v. King-Emperor and Lakhi Narayan v. State of Bihar underscored the sole authority of the Governor-General or Governor to determine emergencies warranting ordinance promulgation.
The Federal Court's stance in Lakhi Narayan v. State of Bihar emphasized that the necessity for an ordinance is not a matter within the competence of courts to investigate, and the Governor's satisfaction is not subject to judicial review. This principle carried forward into the constitutional framework.
Under the Constitution, the Supreme Court has grappled with the justiciability of the President's satisfaction in ordinance making. In S.K.G. Sugar Ltd. v. State of Bihar, the Court upheld the Governor's subjective judgment in making ordinances, stating that it is not justiciable and cannot be questioned for error of judgment.
However, the scope of judicial review was challenged in subsequent cases. In the Bank Nationalisation case, the Court left open the question of whether challenges based on the President's satisfaction could be entertained, raising arguments that the President's discretion should not be entirely immune from scrutiny.
The issue gained further clarity through constitutional amendments. The 38th Amendment added Article 123(4), making the satisfaction of the President non-justiciable. However, the Supreme Court suggested that challenges based on mala fides could still be entertained.
This provision was repealed by the 44th Amendment, indicating that arguments of mala fides remain open for scrutiny.
Subsequent cases, like A.K. Roy v. Union of India, maintained that while the President's satisfaction may not be entirely immune from judicial review, challenges must establish a prima facie case of mala fides or the absence of circumstances necessitating ordinance promulgation.
The overarching principle is that while the President's satisfaction in issuing ordinances is generally considered beyond judicial review, challenges based on mala fides or misuse of power can be entertained.
The judiciary has emphasized the importance of ensuring the judicious exercise of executive authority and preventing the reckless use of ordinance-making power.
Thus, while the President's satisfaction remains a crucial aspect of ordinance making, its exercise is subject to certain checks and balances to uphold the principles of democratic governance and constitutionalism.
ORDINANCE AS A LEGISLATIVE POWER
In legal jurisprudence, the issuance of an ordinance is considered a legislative act rather than an executive one. This distinction is crucial, as it dictates the scope of judicial review applicable to ordinances.
The Supreme Court, in cases such as T. Venkata Reddy v. State of Andhra Pradesh and K. Nagaraj v. State of AP, has underscored that the exercise of ordinance-making power is akin to the enactment of legislation by the legislature. Consequently, the motives behind the issuance of an ordinance, as well as the extent of consideration given to its provisions, are beyond the purview of judicial scrutiny.
The principle laid down by the Court is that an ordinance should be treated with the same attributes and immunities as an Act passed by the legislature. Thus, while the courts can declare a statute unconstitutional if it violates constitutional limits, they cannot inquire into the propriety or necessity of the legislative act.
The discretion exercised by the legislature in passing a statute, including an ordinance, is presumed to be proper and valid. As stated by the Supreme Court,
"The motives of the legislature in passing a statute is beyond the scrutiny of the courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it."
Furthermore, the Court has emphasized that the power to issue an ordinance is plenary within its field, akin to the legislative power of a state legislature.
Therefore, while an ordinance can be invalidated for contravening constitutional limitations applicable to legislative power, such as those specified in the Constitution, it cannot be declared invalid on the grounds of non-application of mind. T
his distinction is crucial, as it highlights the difference between executive actions, which are subject to review for non-application of mind, and legislative acts, which are not.
The Supreme Court's rulings affirm that ordinances are legislative acts and should be treated as such. They are vested with the same attributes, immunities, and limitations as laws enacted by the legislature.
While the courts can review ordinances for constitutional validity, they cannot delve into the subjective considerations or motives behind their enactment.
This principle underscores the separation of powers between the judiciary and the legislature and upholds the autonomy of the legislative process.
JUDICIAL REVIEW OF ORDINANCE
The recent developments regarding the judicial review of ordinances highlight the evolving jurisprudence on the subject.
The Constitutional Bench of the Supreme Court, in a departure from the previous stance taken in the State of Rajasthan v. Union of India case, reaffirmed the principle established in Bommai's case that the subjective satisfaction of a Constitutional authority, including the Governor, is not exempt from judicial review.
This means that the Court can scrutinize whether the Governor's satisfaction, recorded in a report, is based on relevant material, made bona fide, and if the facts have been duly verified. Although this opinion was expressed in the context of executive action under Article 356, which is not legislative in character, it indicates a broader assertion that every executive action, unless specifically barred, is subject to judicial review.
The Delhi High Court has echoed this sentiment, stating that it is incumbent upon the petitioner to establish a prima facie case that no circumstances necessitating the issuance of ordinances existed before the burden shifts to the Executive to disclose the facts within its knowledge. Mere casual challenges to the existence of such circumstances are insufficient to shift the burden of proof.
However, the application of mala fides to ordinances has been a subject of debate. In the case of Hasanahba before the Karnataka High Court, a single judge declared an ordinance promulgated by the State Governor as mala fide, emphasizing that ordinances should be used to sub-serve, conserve, and enhance the constitutional process and not bypass it.
However, on appeal, a bench of two judges reversed the judgment, ruling that the power to make an ordinance is legislative in nature, and therefore, the concept of mala fides does not apply.
The court held that mala fides cannot be attributed to the legislature as a body, and the Governor acts as a substitute for the Legislature while making ordinances. The court relied on the Nagaraj case for support and did not refer to Bommai, indicating a divergence in interpretations among different benches of the High Court.
These developments underscore the complex nature of judicial review concerning ordinances. While the principle of judicial review has been reaffirmed by the Supreme Court, the application of concepts such as mala fides to legislative acts like ordinances remains contentious and subject to interpretation.
As such, the courts continue to navigate the delicate balance between upholding constitutional principles and respecting the legislative process.
ORDINANCE WHEN BOTH HOUSES ARE SESSION
According to Article 123(1) of the Constitution, an ordinance cannot be promulgated when both Houses of Parliament are in session. If an ordinance is made under such circumstances, it is deemed void. However, an ordinance may be promulgated when only one House is in session.
This exception is based on the rationale that a law requires the approval of both Houses of Parliament, and therefore, if only one House is in session, the situation may necessitate immediate legislation, thus warranting the use of the ordinance-making power.
However, it is considered discourteous for the government to promulgate an ordinance without consulting the House in session. In such situations, the government may opt to introduce a Bill containing the necessary provisions in the House in session.
Once the Bill is passed by that House, it can then be promulgated as an ordinance. Subsequently, the Bill can be passed by the other House, thereby revoking the ordinance.
An example of this process occurred in 1957 when the Central Government employees threatened to go on strike. During this time, only the Lok Sabha was in session.
In response, the Lok Sabha passed a Bill to maintain essential services. Subsequently, the Essential Services Maintenance Ordinance was promulgated, embodying the provisions of the passed Bill. Later, when the Rajya Sabha also convened, the Bill was passed by both Houses, resulting in the revocation of the ordinance.
This procedure demonstrates a practical approach to balancing the need for immediate legislation with the parliamentary process, ensuring that ordinances are issued in appropriate circumstances and with due consideration for parliamentary protocol.
ORDINANCE VALIDITY
The validity of ordinances issued by the executive is subject to certain constraints and parliamentary scrutiny. While the executive possesses the power to promulgate ordinances, this power is not unrestrained.
Ordinances are temporary measures designed to address urgent situations, and they are brought under parliamentary control at the earliest opportunity rather than being subject to judicial oversight.
Under Article 123 of the Constitution, an ordinance must be laid before each House of Parliament when it reconvenes after its issuance. Additionally, the ordinance ceases to operate after six weeks from the assembly of Parliament.
If both Houses of Parliament assemble on different dates, the six-week period is calculated from the later date of assembly.
This means that Parliament must pass a law to replace the ordinance within six weeks of its assembly, ensuring that the maximum duration for which an ordinance may remain in force is 7.5 months.
Furthermore, an ordinance may cease to have effect earlier than the prescribed six weeks if both Houses of Parliament pass a resolution disapproving it. Additionally, the executive retains the authority to withdraw the ordinance at any time.
Parliament's control over the executive's ordinance-making power is exercised ex post facto, meaning it occurs after the ordinance has been promulgated rather than before.
This ensures that ordinances are subjected to parliamentary scrutiny and oversight, aligning with the principles of democratic governance and separation of powers.
The validity of ordinances is contingent upon adherence to constitutional provisions, parliamentary scrutiny, and the temporary nature of these measures to address urgent situations.
CHECK ON THE EXECUTIVE POWER TO PROMULGATE ORDINANCE
To ensure that the executive power to promulgate ordinances is exercised judiciously and in line with democratic principles, several checks and balances are in place.
Both Houses of Parliament have rules stipulating that a Bill seeking to replace an ordinance must be introduced along with a statement explaining the circumstances necessitating immediate legislation via an ordinance.
This requirement ensures transparency and accountability, compelling the government to justify the use of ordinance-making power.
Additionally, if the provisions made through an ordinance are intended to continue even after the ordinance lapses, Parliament must enact a law to incorporate those provisions.
While the government may have no difficulty passing such a law in the Lok Sabha, challenges may arise in the Rajya Sabha if the government lacks a majority.
This underscores the importance of democratic deliberation and consensus-building in the legislative process.
Ordinances, by their nature, bypass the normal legislative process, which involves open discussion and consideration by elected representatives in both Houses of Parliament.
They are drafted in government chambers and promulgated without such open debate.
Therefore, the ordinance-making power should be invoked sparingly and only when absolutely necessary, when the situation cannot be effectively addressed through regular legislative channels.
It's crucial to recognize that despite their expedient nature, ordinances are not immune from the scrutiny and limitations applicable to Acts passed by Parliament.
They possess legislative character and are subject to the same constraints and constitutional safeguards.
Thus, while ordinances provide a mechanism for addressing urgent situations, their use must be circumscribed by principles of democratic governance and constitutionalism.
EXTENT OF ORDINANCE MAKING POWER OF THE PRESIDENT
The extent of the ordinance-making power of the executive in India is carefully circumscribed by constitutional provisions and judicial interpretations.
While the power to promulgate ordinances is vested in the Executive, it is not considered anti-democratic.
An ordinance is issued on the advice of the Council of Ministers, which remains accountable to Parliament. If the Executive misuses its power, Parliament has the authority to disapprove the ordinance and even pass a vote of no confidence against the Council of Ministers.
An ordinance holds the same force and effect as an Act of Parliament. It ceases to exist under several circumstances: if both Houses of Parliament pass resolutions disapproving it, if it is not replaced by an Act within the stipulated period, if the executive lets it lapse without bringing it before Parliament, or if it is withdrawn by the Government.
The President's power to issue ordinances is co-extensive with the legislative power of Parliament. An ordinance cannot make provisions that Parliament is not competent to enact.
However, it can enact any provision that Parliament can, with the exception of making appropriations from the Consolidated Fund, except during the proclamation of an emergency.
An ordinance may cover matters in Lists I and III but not in List II, except during a state of emergency. Additionally, an ordinance is subject to Fundamental Rights.
In the case of A.K. Roy v. Union of India, the Supreme Court emphasized that an ordinance is law and a product of legislative power.
It rejected the contention that the President has no power to issue ordinances amending or altering tax laws.
The Court affirmed that an ordinance has the same force and effect as an Act of Parliament, and the President's legislative power under Article 123 is co-extensive with Parliament's power to make laws.
The executive's power to issue ordinances is subject to constitutional limitations and judicial scrutiny, ensuring that it operates within the framework of democratic governance and respects the authority of Parliament.
Constitutional Perogative of ordinance making power of the president
Art. 123 shows that the power to make ordinances has been given only to deal with unforeseen or urgent matters, and it is subject to proper parliamentary controls.
The power is exercised by a government accountable to Parliament. It is to be exercised when Parliament is not in session.
The ordinance has to be placed before both Houses which can disapprove the ordinance if they so like. If the executive misuses its power, the Lok Sabha can pass a vote of no confidence to remove the government from office.
Under Art. 123, an ordinance can be issued to deal with the emergent situation which might arise as a result of a law being declared unconstitutional by a court.
There is no inhibition on the ordinance-making power that it shall not deal with a matter already covered by a law made by Parliament.