Limitations on the Ordinance Making Power

The author in this article discusses the limitations on the ordinance making power and the related Constitutional provisions. It further discusses the case laws that discusse the limitations on the ordinance making power.

Ordinance in Law

Ordinances are like laws; however, they are not enacted by the Parliament but rather promulgated by the President of India. Ordinances are enacted when both the Houses, i.e., Lok Sabha and Rajya Sabha or either of the houses is not in session. The approval of the Union Cabinet is a must for the promulgation of an ordinance. Immediate regulatory steps may be made using ordinances. To put an ordinance into force, it must be accepted by the Parliament within six weeks of its introduction. let us discuss the Ordinance making power.

Ordinance making power of the President

According to Article 123 of the Indian Constitution, President of India is granted with specific law-making powers to promulgate Ordinance and this can be done when both the Houses or either house of the Parliament is in session. An ordinance can be related to any matter on which the Parliament has the authority to legislate. Likewise, an ordinance has similar limitations as that of Parliament to legislate, including the allocation of powers amongst the Union, State and Concurrent Lists. An ordinance can be withdrawn at any time by the President. But, he can exercise his power only with the consent of the Council of Ministers preceded by the president. An ordinance has a retrospective effect and can alter or revoke some act of the Parliament or any other ordinances. However, it can never amend the Constitution. The largest number of Ordinances was promulgated in 1993, and there has been a decline in the number of Ordinance promulgated since then. “Ordinances promulgated from the 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.”[1]

The number of  Ordinances issued under the regulation of the first, second, third and fourth Lok Sabha which were 39,20,31 and 34 respectively. However, there was an increase of three times in the promulgation of ordinance in the fifth Lok Sabha, which is 93.[2]The up-going trend was driven backwards during 1977-1979 by the Janta Dal governance, where only 34 ordinances were promulgated. Nevertheless, the subsequent governments had promulgated an average of ten ordinances per year.

Ordinance making power of the Governor 

Much as the President of India is constitutionally required to issue Ordinances pursuant to Article 123, the Governor of a State may issue Ordinances pursuant to Article 213when the State Assembly or either of the houses (in the states with bicameral legislature) is not in session. The powers of the President and the Governor are roughly similar to those of the Ordinance making. But, the Governor cannot issue any ordinance without prior orders from the President in case that the President’s assent is needed to pass a similar bill.

An ordinance will be made available to challenge on the following grounds

  • “It constitutes colorable legislation; or
  • It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
  • It is violative of substantive provisions of Our Constitution such as an Article 301; or
  • Its retrospectively is unconstitutional.”
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Ordinances are, therefore, formulated by an administrative authority that is claimed to be a single, unified agency. The President shall be the head of the Executive body, which shall issue ordinances on the recommendation of the Council of Ministers. The most significant pre-requisite of the promulgation of the ordinance is the “necessity to take the immediate action.” There can then be no problem in ascertaining the approval of the President when there is a genuine requirement or need for the promulgation of the Ordinance.In the case of D. C Wadhwa v. State of Bihar,[3] the promulgating and re-promulgating ordinances made by the state of Bihar were challenged, as there was the promulgation of the same in “massive scale.” Around 1967-1981, 256 ordinances were promulgated and later re-promulgated, few of which remain in effect for up to 14 years. An observation was made by CJ P.N Bhagwati where,

 “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 debated in the year 1998 in the case of Krishna Kumar Singh v State of Bihar,[4]  in this case the Supreme Court has struck down a number of cases arguing that no clear precedent for the exercise of the power of the President has been established. The court also stated that “there was no explanation offered for promulgating one ordinance upon another.”While the sheer profligacy of the President’s power in ordinance making had compelled the Apex Court to carry out a judicial review, there is still no transparency on nature as well as the extent of judicial review of the court on the ordinances made by the president or the Governor.

President’s Satisfaction

One of the essentials to be kept in mind while passing an ordinance is that the President should be satisfied; that circumstances exist which requires immediate actions on the part of the President. However, the Supreme Court has not yet defined “satisfaction of the President” as well as whether the subjective satisfaction of the president may be questioned before the court of law. In order to interpret the said ambiguity, the 38th Constitutional (Amendment) Act, 1975 has been passed by the Indira Gandhi government, which has omitted the subjective satisfaction of the President outside the preview of Judicial Review. later on, this clause was exempted by the 44th Constitutional (Amendment) Act, 1978, holding that the power of the President may be questioned before the Court of law if it is based on bad faith, corrupt motive or ant malafide intention.

In case of  A.K. Roy v. Union of India,[5] the apex Court held that, the subjective satisfaction of the President is completely justiciable. However, the supreme court has overrule this own decision in T. Venkata Reddy v. State of Andhra Pradesh[6] and held that the President’s satisfaction cannot be called in question before the court of law as well as is out of Judicial Review.

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Approximately 615 Orders were issued between 1952 and 2006 and only one of them can be reasonably justiciable, which was introduced by the Prime Minister Moraji Desai in 1978, regarding the demonetisation of currency notes of Rs.1000/5000/10,000 denominations. Indira Gandhi ‘s decision to nationalize banks by an Ordinance issued by her was one of the mostoutrageous moves.

Important Case Laws

In the case ofR.C. Copper v. Union of India,[7]Constitutional Validity of the Twenty-fifth Amendment Act, 1971 was challenged, which limited the right of property of a person and made it possible for the government to obtain the same freedom for public use, with the payment of compensation to be decided by the Parliament and not by the court of law. In the said case which is commonly known as the Bank Nationalisation case, the Supreme court while reviewing the constitutionality of the Banking Companies Ordinance of 1969, which sought to nationalize 14 commercial banks in India, held that the President’s decision could be questioned on the ground that no ‘immediate intervention’ was taken on its part.

In the case of A.K. Roy v. Union of India,[8] the apex court while examining the constitutionality of the National Security Ordinance, 1980 which was implemented to facilitate for preventive detention in several cases, the apex court disputed that the powers of the President in making Ordinances is not beyond the Judicial Review. But, the court was unable to identify the issues of the case, since the Ordinance passed by the President was succeed by an Act. Later, the court has pointed out the necessity to exercise Judicial Review over the decision taken by the President only at substantial grounds and not otherwise at every “casual challenge.”

In the case of S.K.G.Sugar Ltd v. State of Bihar,[9] the apex court 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.”

One of the significant questions which was put forth in the T. Venkat Reddy v. State of Andhra Pradesh was, “whether the validity of an ordinance passes can be tested upon the similar grounds as those on which an executive or judicial action is tested?” This questioned was answered through citing the judgment pronounced in the case of K. Nagaraj v. State of Karnataka,[10] where the court 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.”

Furthermore, the court held that “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 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.”[11]

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Limitations of ordinance making power

The following are the limitations of Ordinance making power:

  • When legislature is not in session: the President can only promulgate an ordinance when both the houses of the Parliament or either of the House of Parliament is not in session.
  • Immediate action is needed: While the President has the authority to issue ordinances, the same cannot be achieved until he is satisfied that there are conditions that compel him to take immediate action.
  • Parliament should approve: after an ordinance id passes by the President, it must be approved by the Parliament within six weeks of the reassembly. The same would cease to function if either of the house disapproves of it.
  • An ordinance can be passes only on those subjects on which the Indian Parliament can make legislation.
  • When an ordinance is passed it cannot curtail any rights of the citizens which are guaranteed under Part III of the Indian Constitution ( Fundamental Rights).
  • When both the houses pass a resolution disapproving the ordinance, then the ordinance stands void.

Note:

  • R.C Cooper v. Union of India[12], the apex court held that the acts of the President can be subject to Judicial Review in respect to ordinances. “38th Amendment Act termed President’s ordinance making power final and conclusive and beyond judicial review; however, 44th Amendment to Indian Constitution reversed it and made President’s satisfaction to bring ordinance justiciable.”
  • The maximum life of an ordinance can be six months and six weeks.

Conclusion

Power of Ordinance shall try to disrupt the balance between the executive and the legislative powers by introducing the dimension of arbitrariness into the constitutional system as well as by disrupting the rule of law. When such an ordinance making power is exerted by the executive body, it appears to be disregarded to the legislature. Till now only a few grounds are established to challenge the validity of the Ordinances, they are;“directly violates a constitutional provision, the President has exceeded his constitutional power and when the President had made a colorable use if his power.”

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[1] Amartya Bag, Ordinance making power of the President of India: A critical outlook, iPleaders (2015), https://blog.ipleaders.in/ordinance-making-power-critical-outlook/ (last visited Jul 24, 2020).

[2] Supra, Note 1

[3]D.C Wadhwa v. State of Bihar, 1987 AIR 579

[4]Krishna Kumar Singh v. State of Bihar, AIR 1998 SC 2288.

[5]A. K Roy v. Union of India, (1982) 1 SCC 271.

[6]T. Venkat Reddy v. State of Andhra Pradesh, 1985 AIR 724.

[7]R. C. Cooper v. Union of India, 1970 AIR 564

[8]A.K Roy v. Union of India, 1982 AIR 710.

[9]S.K.G. Sugar Ltd v. State of Bihar, AIR 1974 SC 1533.

[10]K. Nagaraj v. State of Karnataka, 1993 (4) SC 27

[11]S.R. Bommai V. Union of India, AIR 1994 SC 1918

[12]Supra, Note 7