What is the ordinance making power of the executive?

The author in this article discusses the powers of the executive to legislate through ordinances and the related provisions. It further discusses that the subordinate legislation and the power of making ordinance are the two ways through which the executive can perform the task of legislation.

Introduction                                                              

In a democratic form of government, it is the legislature that is responsible for drafting laws, executive is responsible for the implementation of the laws and the judiciary performs the task of interpretations of these laws. However, their functions are not in a straight jacket forms and they do overlap. It is obvious that legislatures cannot be in session throughout the year so the task of making laws is entrusted with the Executives. The subordinate legislation and the power of making ordinance are the two ways through which the executive can perform the task of legislation.

Article 123 of the Indian Constitution states about the power of President to promulgate Ordinances during recess of parliament. And Article 213 of the Constitution confers similar powers to the governors but there is a slight difference between both the articles as some of the matters under Art. 213 needs to obtain a prior assent of the President. The objective of this research article is to study the ordinance making power of executives.

The legislative power is not the parallel power of legislation. It can be exercised only when both Houses of Parliament are not in session, to enable the executive to meet the emergent situation.[1] Regardless of noteworthy complementarities of the legislative powers practiced by the Legislature just as by the Executive, there is an enormous group of opinions in India either in favor or against Ordinance, contingent upon whether one is on the Government or the Opposition. While the individuals who shield Ordinances unequivocally refer to urgency and emergency as the factor, other people who scrutinize Ordinances hold this as undemocratic and accuse the Executive of wilful infringement into the Legislature’s genuine space. The charges and counter-charges in any case, the reality remains that the Parliament of India is the supreme legislative body, depicting the sovereign will of the people of the nation. Consistent with its position, the Parliament has guided the public governance, verbalized the public concerns, and obliged the fluctuated interests of various social groups through path-breaking enactments. Indeed, the Parliament, through its inherent law-making power, has merged democratic procedures, induced social union, and realized huge changes in the working of the key of the democratic institutions. What’s more, all the while, it has empowered the State to demonstrate equivalent to the difficulties of evolving times.[2]

Historical Background

Section 72 of the Government of India Act, 1915 gave the Governor-General the power to issue an ordinance. Section 42 and 88 of the Government of India Act, 1935 gave power to the Governor-General of India and the Governor of a province respectively to make ordinance.[3] There were so many discussions and debate in context with the Ordinance making power, some members from the Constituent Assembly accentuated that this power of President is against the constitutional morality and was unique in nature, some contended that it ought to be left as an arrangement which ought to be utilized during emergency situations only.[4]

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Scope of Ordinance making Power

Article 123 empowers the President to promulgate such ordinances as the circumstances appear to him to require when-

  1. Both houses of parliament are not in session.
  2. He is satisfied that circumstances exist which render it necessary for him to take immediate action.

The provision renders the power formally on the President but he acts on the advice of the Council of Ministers and therefore, the ordinance-making power is vested effectively in the Central Executive. [5]

The law made by the President is the strictly limited duration and ceases to operate within six weeks from the reassembly of Parliament. This also shows that the President’s power is only to enable the executive to tide over emergent situations which may arise whilst the Houses of Parliament are not in session. The President’s Power is hedged in by limitation and conditions and although the power may appear to be undemocratic, it is not so as the executive is answerable to the legislature and if an ordinance is promulgated in misuse of power, abuse of power, the legislature can pass a resolution disproving the ordinance and also vote of no confidence in the executive. The President is not the repository of the legislative power of the Union but has been invested the power to legislate by promulgating an ordinance to meet the extraordinary situations that demand immediate enactment of a law.[6]

An ordinance cannot be promulgated when both the Houses of Parliament are in session (Art. 123(1)). Accordingly when an ordinance made when the two Houses are in session is void. It may however be made when only one house is in session, the reason being that the law can be passed by both Houses and not by one House alone, and thus, it cannot meet the situation calling for immediate legislation and recourse to the ordinance-making power becomes necessary.

The ordinance is to be laid before each House of Parliament when it reconvenes after the making of the ordinance (Art.123 (2)(a)). The ordinance shall cease to operate at the expiry of six weeks from the assembly of parliament. When two Houses of Parliament assemble on different dates, the period of six weeks is to be reckoned from the later of the two dates. It means that Parliament must pass a law to replace the ordinance within six weeks of its assembling. Thus, the maximum duration for which an ordinance may last is 7.5 months as under Art. 85, six months cannot intervene between two sessions of Parliament, and the ordinance would cease to operate six weeks after parliament meets.

An ordinance may cease to have an effect even earlier than the prescribed six weeks, if both Houses of Parliament pass a resolution disapproving it (Art. 123(2)(a)). It may be withdrawn by the executive at any time (Art. 123(2)(b)). Parliament control over the Central Executive’s ordinance making power is thus ex post facto, i.e. it is exercised after the ordinance has been promulgated and not before. To ensure that the Executive uses the ordinance making power only when circumstances are such as admit of no delay, rules of both houses provides that a Bill seeking to replace an ordinance should be introduced in the house along with the statement explaining the circumstances which made immediate legislation by an ordinance necessary.[7]  

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The satisfaction of the President

The provision with respect as per the ‘satisfaction of the President’ concerning the presence of conditions which render it essential for him to promulgate an Ordinance has been a state of significant debate. A few judicial pronouncements have dealt with this issue. The essence is that the ‘satisfaction’ alluded to in this clause isn’t the ‘personal satisfaction’ of the President, yet satisfaction showed up at on the advice got from the Council of Ministers. as such, the President practices these forces on the advice of the Council of Ministers.

To clearly explain the said vagueness, Indira Gandhi led the Government passed the 38th Constitutional (Amendment) Act, 1975 which has explicitly rejected the subjective satisfaction of the President outside the domain of Judicial Review. Further in 44th (Amendment) Act, 1978 repealed this clause, holding that the power of President could be tested in the Court of Law on the off chance that it depends on dishonesty, corrupt, or had any mala fide aim.

In case of A.K. Roy vs. Union of India[8] the question of judicial review of President’s satisfaction to promulgate the National Security Ordinance 198, providing for preventive detention was raised. The Supreme Court left the question open whether the satisfaction of president under Art. 123(1) is justiciable or not. The court did say however that it was arguable that “judicial review is not totally excluded in regard to the question relating to the President’s satisfaction”. In the instant case, since the ordinance in question had been replaced by an Act of Parliament, the Court felt no need to go into the question of President’s satisfaction to issue the ordinance in question. Further the court felt that the material place before it was not sufficient to enable it to reach any conclusion on way or another on this question.

In T. Venkata Reddy v. State of Andhra Pradesh[9] the Supreme Court has ruled that since the power to make an ordinance is legislative and not executive power, its exercise cannot be questioned on such grounds as improper motives, or non-application of mind, or on grounds of its property, expediency and necessity. An Ordinance stand on the same footing as an Act. Therefore ‘an ordinance should be clothed with all the attributes of an act of legislature carrying with it its incidents immunities and limitation under the constitution. It cannot be treated as an executive action or an administrative decision’. The courts can declare a statue unconstitutional when it transgresses constitutional limits, but they cannot inquire into property of the exercise of legislative power. It has to be assumed that legislative discretion has been properly exercised.

 The Ordinance making power of the President is truly a power vested with the Union Cabinet or the Council of Ministers. Additionally, it has become a set up actuality that the satisfaction of the President with respect to the presence of conditions that render it essential for him to make prompt move is subjective matter which can’t be examined or addressed in court of law; and the exact idea of the activity that he may choose to take in such conditions is likewise left on his discretion and can’t be tested. In any case, this entire part of subjective satisfaction is tempered with ‘ifs and buts’. On various events, the Supreme Court has clarified that the Court is competent to enquire whether in practicing his constitutional power in declaring Ordinances, the President has surpassed the limits forced by the Constitution.

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Conclusion

Since the origin of the Constitution, in majority cases the power of ordinance making has been a topic of debate. It upsets the harmony between executive power and legislative power by bringing into the element of arbitrariness into the Constitutional framework which further upsets the standard of law structure. At whatever point, such power is practiced in such a way as above examined. It clearly shows this is a disregard of legislature. Till now it is settled that a ordinance can be tested on the ground that (a) it legitimately violates a constitutional provision or (b) the President has surpassed his constitutional power to make an ordinance, or (c) has made a colorable utilization of such power (for example by progressive re-proclamation of an Ordinance). Further, it ought to be made dependent upon judicial review.

The Ordinance making power of the executive was one such provision, which however unfavorable to democratic ideals, was evoked to hold over any developing circumstance. It has been utilized throughout the decades fulfilling the reason for which it was implied and furthermore misused on occasion, for it is unimaginable in a democratic order to protect totally the area of law from that politics. Any constitutional law so as to be successful must be founded on a sound establishment of constitutional morality. As a prominent researcher has appropriately watched, without established profound quality, the activity of a Constitution, regardless of how deliberately composed, will in general become discretionary, sporadic and eccentric. As the Founding Fathers of our Constitution have commented, established profound quality is anything but a characteristic opinion however one which should be developed. In this way, independent of the means taken by the Government or those by the Parliament in managing such special provision, a sincere attempt ought to be made to build up the temperance of responsibility and constitutional morality.

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[1] Vol1, Arvind P Datar, Commentary on Constitution of India,757 (2nd Ed. 2010)

[2] Dr V.K. AGNIHOTRI, THE ORDINANCE: LEGISLATION BY THE EXECUTIVE IN INDIA WHEN PARLIAMENT IS NOT IN SESSION, asgp.co, (July,24, 2020, 08 :12 PM), http://www.asgp.co/sites/default/files/documents/GCHPNUJIXHEHKOXKBBZRSKCFGCYVHS.doc

[3] Supra Note 1

[4] Amartya Bag, Ordinance making power of the President of India: A critical outlook, ipleaders, (July 24,2020, 08:46 PM) https://blog.ipleaders.in/ordinance-making-power-critical-outlook/

[5] Vol. 1, M.P. Jain, Indian Constitutional Law,(6th Ed. 2013)

[6] Supra Note 1

[7] Supra Note 5

[8] AIR 1982 SC 710

[9] AIR 1985 SC 724