This Article is written by Hia Sharma, student of Himachal Pradesh National Law University Shimla.
Promulgation of Ordinances
The term ordinance means an order of the authority. It is a law or decree promulgated by the centre or the state government. The ordinance making power of the executive is meant for those situations and the conditions where it is not possible for the legislature to formulate laws. Article 123 of The Indian Constitution, 1950 provides for the provision by which the President of the country can promulgate ordinance.
Separation of Powers
Part V of the Indian Constitution, 1950 ‘The Union’ talks about the legislative, executive and judiciary powers under the Indian Constitution.
Primarily, the power to make laws is given to the Legislatures of the country. The Central and the State legislatures are responsible for the formulation of the laws. The Executive is responsible for the implementation of the laws, or in other words to put laws into actions. However under Article 123, the President of India has powers to legislate by ordinances provided that the Parliament is in session and is not in a position to formulate enactments on the required subject within the required time. This way comes an overlapping of the legislative and executive powers here.
Chapter III, ‘Legislative Powers of the President’ under Part V ‘The Union’ provides for the ordinance making power of the president under Article 123.
Scope of Ordinances
The scope of the ordinances made by the President is co-extensive with that of the law making power of the Parliament. It means that the executive can make laws related to any area to which the legislature has the power to make laws. Similarly the ordinance promulgated by the executive has same limitations to which the laws formulated by the legislatures are subjected to.
Article 13 of the Indian Constitution, 1950 states that the laws that are not in consonance with the provisions of the fundamental rights provided by the Chapter III of the Constitution shall deemed to be void. This limitation applies to the promulgation of the ordinance as well. The President cannot promulgate any such ordinance that violates the fundamental rights otherwise the ordinance will be declared void.
The power to promulgate ordinances is not exercised solely by the President. The President works on the advice of the Council of Ministers, stated as per the Article 74 of The Constitution of India. The President shall act in consonance with any such suggestion.
The President can promulgate ordinances only when both the houses of the Parliament or either of the houses of the Parliament is not in session. It is further provided that the President must be satisfied, not his personal satisfaction though but that of the Council of Ministers, that such a situation exists that requires immediate action.
Clause (2) of Article 123 of the Constitution of India, 1950 states that the ordinance will have same power or force and effect as any other enactment of the legislator but provided that the ordinance is to be presented in the Parliament after its re-assembly and must be passed by both the houses of the Parliament within a period of six weeks. Otherwise at the expiration of six weeks time period the ordinance shall cease to operate.
If the two houses of the Parliament are summoned to re-assemble on different dates, the period of six weeks will start from the date when the second house of the Parliament re-assembles.
The ordinance can also cease to operate at any time before the expiration of the six weeks time period if both the houses of the Parliament upon their re-assembly pass the resolution to disapprove or dissolve the said ordinance. When the second house passes the disapproval the ordinance will become ineffective at that point of time.
The ordinance can also cease its operation if the President withdraws it before the provided time period.
The phrase that the President is satisfied that certain circumstances prevail that it is necessary to take immediate actions does not relate to Emergency Provisions provided by the Article 352 of the Indian Constitution, 1950. This means that the immediate actions have nothing to do directly with the external aggression on internal rebellion. The situation or circumstances prevail to those serious and imminent conditions where immediate regulation is required and the delay can’t be tolerated.
Re-promulgation of Ordinances
Now take a situation where an ordinance on its expiry is re-promulgated by the President. Is it constitutional to do so? It happened in the case D.C. Wadhwa v. State of Bihar. The Government of the state by way of re-promulgation kept two hundred and fifty six ordinances in operation for a period of up to fourteen years. This meant that instead of passing proper act through ordinary course of legislation in the place of the ordinance or passing the ordinance by the state legislature, the Governor of the state kept on re-promulgating the ordinances as soon as the expiry date of the previous promulgation arose.
It was established by the Honourable Court that the power of President to promulgate an ordinance as required by the article 123 is an emergency power. It means that the power can be exercised only when it not possible for the legislature to frame laws.
Though, there are certain exceptional circumstances where the President or the Governor can re-promulgate an ordinance. It could happen that the Parliament or the legislature as the case maybe might not be able to consider the ordinance due to their pre-occupations with other works or anything like that then in that case it would not be unconstitutional on the part of the President or the Governor to re-promulgate the ordinance. But if it is made a usual practice to establish control over the territory or to just by-pass the law making procedure or anything like that then it is definitely a misuse of power and a fraud on the constitution. The Court has a power to declare such ordinance void.
In Cooper v. Union of India, it was held that even the genuineness of the President’s satisfaction on which an ordinance is promulgated can be challenged in the court of law based on it being mala fide or unconstitutional or in misuse of power or any other relevant reason.
The 38th amendment act, 1975, by the Indira Government, inserted clause (4) in the article which stated that the satisfaction of the President will be final and cannot be challenged in the court of law. But the Janata Government, through 44th amendment act, 1978, over-ruled it. The Cooper’s judgment was established and the judicial interference was re-allowed if the satisfaction of the President is found to be unconstitutional or mala fide or any other such grounds.
Critical Analysis of Article 123
This article faces certain criticisms. Firstly, the power of the President to promulgate ordinances is against the doctrine of separation of power. The legislative organ has the power to frame laws and enactments, but if the executive functions such power then this is conflict of power between the legislative and the executive.
Further if the President or the Governor exercises the power just to by-pass the legislative procedure or to avoid the debate on the floor of the house, then it is definitely a misuse of the power.
Also the satisfaction of the President is very subjective in nature. One can interpret the situation according to his own perceptions.
Thus to conclude the President can promulgate an ordinance if the either house of the Parliament is not in session. Provided that the President feels to his personal satisfaction guided by the suggestions of the council of minister that such a situation exists that there is an immediate need of ordinance for the state’s welfare. The ordinance will cease to exist after a period of six weeks after the re-assembly of the house of the Parliament and can also cease to operate if dissolved by the legislature or withdrawn by the President or declared to be unconstitutional. Thus overall the promulgation of ordinance is a beneficial practice or power given to the President if it is used in genuine circumstances and not otherwise.
- Cooper v. Union of India AIR 1970 SC 564, 1970 SCR (3) 530
- C. Wadhwa v. State of Bihar AIR 1987 SC 579, 1987 SCR (1) 798
- Durga Das Basu, Introduction to the Constitution of India.
- Joyita, Ordinance making powers of the Executive of India, September 27, 2013 https://www.prsindia.org/theprsblog/ordinance-making-powers-executive-india
- The Constitution of India, 1950