JUDICIAL BEHAVIOUR VIS A VIS ORDINANCE MAKING POWER

PROJECT ON CONSTITUTIONAL GOVERNANCE

Submitted to Dr Yogesh Pratap Singh Submitted By: Aditya Subba 19llm002

Professor of Law Bhanu Pratap 19llm008

1
 CONTENTS

S. HEADING PAGE
No. NO.
1. Introduction 3
2. Historical Overview 4
3. Is Ordinance Legislative or Executive Power 6
4. Aid and Advise of Council of Minister 8
5. Houses Not to be in Session 9
6. Is Ordinance Judicially Reviewable 11
7. Authority of an Ordinance 13
8. Ordinances: Encroachment of Executive on Legislative 14
Domain
9. A Regular Legislation and an Ordinance: 15
Commonalities and Differences
10. Promulgation of Ordinances: An Unhealthy Trend 17
11. Conclusion 18
12. Bibliography 19

JUDICIAL BEHAVIOUR VIS A VIS ORDINANCE MAKING POWER

2
INTRODUCTION
The Ordinance making power of the President has been granted in the Constitution of India
under Article 123. Article 123 says that when the Houses of Parliament are not in session the
President may promulgate ordinance if the President is satisfied that circumstances exist
which Ordinances render it necessary for him to take immediate action, he may promulgate
such Ordinances as the circumstances appear to him to require. 1An Ordinance promulgated
under this Article shall have the same force and effect as an Act of Parliament. 2 But every
such Ordinance shall be laid before both Houses of Parliament and shall cease to operate at
the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of
that period resolutions disapproving it are passed by both House.3 Ordinarily the Parliament
is responsible for the law making process, but the makers of the
Constitution though considering Ordinances to be “a necessary evil”, hold that the Ordinance
making power should be delegated to the Executive to deal with such situations when the
existing law is not enough to deal with the aroused situation and the Parliament is not in
session.4
In the democracies the world over, it is the Legislature that makes laws. Owing to certain
practical considerations, however, Executive also has been entrusted the task of law-making,
subject, of course, to the superintendence and control of the legislature. Subordinate
legislation and Ordinance making powers of the Executive are two examples of legislation by
the Executive. Legislatures do not and cannot sit regularly throughout the year. 5 Therefore,
the need and importance of Ordinance making by the Executive during the period when the
legislature is not in session to meet the exigencies, can hardly be over-emphasised.

Despite significant complementarities of the legislative power exercised by the

Legislature as well as by the Executive, there is a large body of opinion in India either in
favour or against Ordinance, depending on whether one is on the side of the Government or
the Opposition. While those who defend Ordinances almost unequivocally cite urgency and
emergency as the factors, others who criticize Ordinances hold this as undemocratic and
charge the Executive with wilful encroachment into the Legislature’s legitimate domain. The

1
Ordinance making powers of the Executive in India < https://www.prsindia.org/theprsblog/ordinance-making-
powers-executive-india> accessed 25th October 2019
2
Article 123 in the Constitution of India < https://indiankanoon.org/doc/1090693/> accessed 25th October 2019
3
Supra Note 2
4
Constituent Assembly Debates, Vol. VIII, p. 213
5
P.M. Bakshi, The Constitution of India with selective comments

3
charges and counter-charges notwithstanding, the fact remains that the Parliament of India is
the supreme legislative body, representing the sovereign will of the people of the country.
True to its position, the Parliament has guided the public governance, articulated the public
concerns and accommodated the varied interests of different social groups through path
breaking legislations. In fact, the Parliament, through its inherent law-making power, has
consolidated democratic processes, engendered social cohesion and brought about significant
reforms in the functioning of key democratic institutions. And, in the process, it has enabled
the State to prove equal to the challenges of changing times.

HISTORICAL OVERVIEW
The historical genesis of the Article 123 lies in the Government of India Act, 1935 which
provided with two different sections regarding the ordinance making power of the Governor
General.6 Under section 42 of the Government of India Act, 1935 the Governor General has
the power to promulgate ordinances only when the legislature was in recess and on the advice
of the ministers and also according to his own judgment, however under certain
circumstances he can override the suggestion of the ministers, but he has to consult them. 7
Section 43 of the Act gives the Governor General the power to issue ordinances for the
purpose of enabling him satisfactorily to discharge his functions imposed upon him by or
under the Act which required to act in his discretion or to exercise his individual judgment.
This almost gives the Governor General a parallel legislative power to enact a bill; however
such act has a lifetime of only six months and can be extended on the previous consent of the
Crown.8

The framers of the Constitution have taken into account the Section 42 of the Government of
India Act, 1935 as the model for the enactment of the Ordinance making power of the
President.9 The framers of the Constitution were very much aware of the “traumas and
travails” of the Ordinance making power given in that Act and were not restrained by any
force not to chose to have or not to have Ordinance making power conferred to the
President.10 Taking into account the English and American Constitutions which don’t have

6
Ordinance Making Power- A Necessary Evilhttps://upesmuser.wordpress.com/2011/10/12/ordinance-making-
power-a-necessary-evil/
7
Supra Note 5
8
Supra Note 5
9
P.M. Bakshi, The Constitution of India with selective comments
10
Sat Pal & Co. v. Lt. Governor of Delhi AIR 1979 SC 1550; p. 1551

4
such provisions, yet they opted for such provisions in good faith 11 that the power would be
exercised only in extraordinary situations and not for political gains. 12 India, being a highly
diverse and multicultural society, has had a rather complex trajectory of experiment with the
democratic form of governance. Managing diversities has been one of the greatest challenges
facing democratic governance. Such a scenario also had necessitated vesting Executive with
legislative responsibilities13. It also owes its origin to India’s long colonial past. 14 The
constitutional scheme under the British rule had given considerable legislative power to the
Executive. This was clearly spelt out in the Government of India Act 1919, and subsequently
in the Government of India Act 1935. Both these Acts empowered the Governor-General at
the Centre, and Governors at the States to promulgate Ordinances, even when the Legislature
was in session. This, in fact, had created a parallel legislative authority that suited the
colonial interest.15

After Independence, the framers of the Indian Constitution had many serious challenges
before them in the task of nation-building. Apart from fulfilling the democratic aspirations of
a vast multitude of people, they had to work for their socio-economic betterment. In the
wake of partition of the country, they had the daunting task of rehabilitation and settlement of
the people migrating to India. There were disparate centrifugal forces that new budding
democracy had to grapple with.16 To thrive as a welfare state on the principles of democratic
governance, where the social, economic and political rights of the common people were
recognized, an inclination towards a strong executive was considered necessary. Therefore, a
system having a holistic and complementary relation between the legislature and executive
was preferred to that in a Presidential system. 17 This is reflected in the composition of the
Indian Parliament in which the President being the head of the Executive has also been made
the Constitutional Head of the Parliament as well. This, thus, represents a real fusion of the
highest executive and legislative authorities.18

11
Subhankar Dam, Presidential Legislation in India < https://www.cambridge.org/core/books/presidential-
legislation-in-india/A038814EA4AA9E861BD51E31240F54F7> accessed 25th November 2019
12
Ordinance Making Power <https://upesmuser.wordpress.com/2011/10/12/ordinance-making-power-a-
necessary-evil/> accessed on 26th October 2019.
13
D.D. Basu, Commentary on the Constitution of India, Seventh edition, Vol G/1, 1993
14
M.P. Jain, Indian Constitutional Law, Vol. 1, Wadhwa and Company, Nagpur, 2003, p. 426.
15
Constituent Assembly Debates, Vol VII and Vol VIII
16
Presidential Ordinances 1950-1984, Lok Sabha Secretariat, 1985
17
History of Ordinances in India <https://islidedocs.com/philosophy-of-money.html?utm_source=summary-of-
history-of-ordinances-in-india > accessed on 24th October 2019.
18
P.M. Bakshi, The Constitution of India with selective comments

5
IS ORDINANCE LEGISLATIVE OR EXECUTIVE POWER

The question of whether the power to make an Ordinance is a legislative power or actually an
executive power disguising as a legislative power has been dealt in the A.K. Roy’s case in an
extensive manner. The contention of the petitioner was that Ordinance making is not a
legislative power of the President on the grounds that unrestricted freedom on the executive is
a threat to the people’s liberty. However, the court said that taking into account the historical
background of the Ordinance making power in India and careful examination of the relevance
of theories evolved in other countries and interpretation of the Constitution in light of them,
said that those theories cannot be applied in the Indian context taking into account the
Constituent Assembly Debates.19 Ordinance making power of the President conferred under
Article 123 has been placed under Chapter III of Part V of the Constitution is called;
“Legislative powers of the President”. Similarly, the Ordinance making power of the
Governor conferred under Article 213 has been placed under Chapter IV of Part VI of the
Constitution is called; “Legislative powers of the Governor.”20

The clause (2) of Article 123 states that “An Ordinance promulgated under this Article shall
have the same force and effect as an Act of Parliament” except, that the existence of the law
made by parliament is determined within that Act and that of an Ordinance expires within six
weeks from the reassembly of the Parliament or if before the expiration of that period
resolutions disapproving it are passed by both Houses.21 Clause 3 of the Article 13 mentions
that “law” include ordinance and it is void to the extent of contravention of the rights
conferred by Part III of the Constitution. The power to issue an Ordinance by the President is
“co-extensive with the Legislative power of the Parliament.” 22 Further, the Article 367 (2)
which is used as an interpretation clause renders no doubt as to that the Constitution doesn’t
distinguish between the laws made by Parliament and the ordinances issued by the
President.23 Another view that is important and was not discussed in the Case which makes it
more clarified about the intention of the framers of the Constitution about conferring
legislative power to the President. K.T. Shah moved an amendment in the draft Constitution
to replace the word “Legislative” to “Extraordinary” in the heading of the Chapter to clarify
19
Supra Note 9
20
A.K Roy Ors vs. Union of India AIR 1982 SC 710
21
Dr. D.C. Wadhwa vs State of Bihar, AIR 1987 SC 579.
22
Sat Pal & Co. v. Lt. Governor of Delhi AIR 1979 SC 1550; p. 1551
23
Supra Note 9

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that the President does not hold legislative power but he holds an extraordinary power;
however the Assembly did not allow the amendment.24

The Court held in the Case that “An ordinance issued by the President or the Governor is as
much law as an Act passed by the Parliament and is, fully of legislative character and are
made in the exercise of legislative power, within the contemplation of the Constitution.”25
The President has the power to enact ordinances in the field which has already been occupied
by a Law made by the legislature, may amend or repeal not only any other Ordinances but
laws made by legislature as well; it can have retrospective effect and is co-ordinate to the
laws passed by the legislature.26

However the legislative power conferred to the President is neither the repository of the
legislative power of the Union nor it is a parallel power of the legislation. 27 The power of
law-making through the use of Ordinances cannot substitute the law making process of the
Parliament; the ordinances which are re-promulgated time to time again without being
brought before the Parliament as required in clause (2) of Article 123 are invalid. 28 According
to M.P. Jain, the ordinances should not be treated at par with an act passed by Parliament; the
main difference lies that while legislation done by Parliament, is done by an elected body
which is open to criticism whereas promulgating an ordinance is purely an executive
decision, which is not open to criticism or open discussion. An ordinance is actually
“legislative act of the executive but not the act of the legislature” therefore; executive
decision may be challenged on the grounds of mala fides.29

AID AND ADVISE OF COUNCIL OF MINISTER

One of the main question which arises is that whether the President is bound by the aid and
advice of the Council of Minister while promulgating an Ordinance. Article 74 of the Indian
Constitution states that there shall be a Council of Ministers with the Prime Minister at the

24
Supra Note 9
25
A.K. Roy v. Union of India AIR 1982 SC 710, 720
26
Supra note 2; p. 725: See also Durga Das Basu, Commentary on the Constitution of India 5522-23 (Wadhwa
8th ed. 2007) (1950).
27
Subhash C. Kashyap, Constitutional Law of India 1205 (Universal Law Publishers) (2008).
28
D.C. Wadhwa v. State of Bihar AIR 1987 SC 579; p. 588-590
29
MP Jain, Indian Constitution Law Vol I 206-207 (Wadhwa 5th ed. 2003) (1962).

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head to aid and advice the President, who shall in exercise of his function, act in accordance
with such advice.30 The 44th Constitutional Amendment inserted a proviso that the President
may require the Council of Minister to reconsider the advice, and the President shall act
according to the advice given after such reconsideration.31 The President cannot function
without a Council of Minister, nor can it exercise its executive power without the aid and
advice of the Council of Minister.32 On prima facie it might seem that the ministerial advice is
binding on the President, but legalistically is directory in nature as it is not legally
enforceable by a Court action. The Article 361 states that a President shall not be answerable
to any court for the exercise and performance of the powers and duties of his office or for any
act done or purporting to be done by him in the exercise and performance of those powers
and duties.33 The advice of the Ministers is not enforceable by Court in virtue of Article
74(2). The only action can be brought against a President is through impeachment of the
President, if he does not follow the advice of the Ministers on a crucial matter.

The clause regarding the ‘satisfaction of the President’ as to the existence of

circumstances which render it necessary for him to promulgate an Ordinance has been a point
of considerable debate. Several judicial pronouncements have dealt with this issue. 34 The crux
is that the ‘satisfaction’ referred to in this clause is not the ‘personal satisfaction’ of the
President, but satisfaction arrived at on the advice received from the Council of Ministers. As
such, the President exercises these powers on the advice of Council of Ministers. The Forty-
second Amendment of the Constitution made it rigid requiring the President to act in
accordance with the advice of the Council of Ministers. This rigidity was, partly diluted by
the Forty-fourth Amendment Act, which provided that the President may require the Council
of Ministers to reconsider the advice, but he shall act in accordance with the advice tendered
after such reconsideration. Dr. B.R. Ambedkar too had definite views on this issue. He stated
in the Constituent Assembly: “Under the Draft Constitution, the President occupies the same
position as the King under the English Constitution. 35 The President of the Indian Union will

30
Constitutional Provisions of Council of Ministers <https://www.gktoday.com/gk/constitutional-provisions-of-
council-of-ministers-in-india/> accessed on 25th October 2019.
31
The Constitution Forty – fourth Amendment Act < https://www.india.gov.in/my-government/constitution-
india/amendments/constitution-india-forty-fourth-amendment-act-1978> accessed on 23rd October 2019
32
See Jain, supra note 12, at 153.
33
Article 361 of the Constitution <https://indiankanoon.org/doc/1470888/> accessed on 23rd October 2019
34
Constituent Assembly Debates, Vol VII and Vol VIII
35
Krishna Kumar Singh & Others vs State of Bihar < https://indiankanoon.org/doc/107225908/> accessed on
25th October 2019

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be generally bound by the advice of his Ministers. He can do nothing contrary to their advice;
nor can he do anything without their advice.”36

Thus, the Ordinance making power of the President is in reality a power vested with the
Union Cabinet or the Council of Ministers. Moreover, it has become an established fact that
the satisfaction of the President regarding the existence of circumstances that render it
necessary for him to take immediate action is a subjective matter which cannot be probed or
questioned in a court of law; and the precise nature of the action that he may decide to take in
such circumstances is also left to his discretion and cannot be challenged. 37 However, this
whole aspect of subjective satisfaction is tempered with ‘ifs and buts’. 38 On a number of
occasions39, the Supreme Court has made it clear that the Court is competent to enquire
whether in exercising his constitutional power in promulgating Ordinances, the President has
exceeded the limits imposed by the Constitution. 40 Dr. Ambedkar while moving for the
Consideration of the Draft Constitution said that “The President of the Indian Union will be
generally bound by the advice of his Ministers. He can do nothing to the contrary to their
advice nor can he do anything without their advice.41

HOUSES NOT TO BE IN SESSION

Both the houses of parliament or of a State Legislature should not be in session. In other
words, where one house is in session and one house is not, an ordinance can be issued. A
State legislature is unicameral and has not only the legislative assembly, as it is always
possible, the assembly should not be in session to enable the Governor to exercise his power
to promulgate an ordinance.42 A house is said to be in session when it is neither dissolved nor
prorogued. Adjournment by the Speaker or the Chairman of the house does not entitled the
president or the governor to promulgate an ordinance because of adjourned house considered
to be in session. It is possible that an ordinance may be promulgated just a day or two before

36
H. M. Seervai, Constitutional Law of India 19 (N.M. Tripathi, Bombay, 1968).
37
The Repealing Ordinance, 1946 (1 of 1946).
38
D.D. Basu, Commentary on the Constitution of India, Seventh edition, Vol G/1, 1993
39
Pradeep Thakur, 'Ordinance Raj: 8 in 225 days of Modi govt' Times of India, 8 January 2015, as available at:
http://timesofindia.indiatimes.com/india/Ordinance-Raj-8-in-225-days-of-Modi-govt/articleshow/45802178.cms
(accessed on 28 September 2019)
40
Presidential Ordinances 1950-1984, Lok Sabha Secretariat, 1985
41
Constituent Assembly Debates <https://indiankanoon.org/doc/843976/> accessed on 23rd October 2019
42
M.P. Jain, Indian Constitutional Law, Vol. 1, Wadhwa and Company, Nagpur, 2003, p. 426.

9
the date on which the parliament or the state legislature is scheduled to meet, as it was done
in R.C. Copper v. UOI43- a House may be prorogued just to enable the President and
Governor to promulgate an ordinance, as was the position in the facts of State of Punjab v.
Satpal Dang44. In the latter case the validity of the ordinance has been impugned on this
ground as well.45 The Supreme Court did not find anything improper on the facts of the case.
The speaker had made the legislative assembly of the State of Punjab defunct by long
adjournment without letting the budget to be passed, even though financial year was coming
to an end.46 The House was prorogued by the Governor specifically to enable him to legislate
under Article 209 of Constitution. The Court considered it quite a reasonable step in the
circumstances of the case.47

The other requirement is that the President or the Governor, as the case may be, should that
circumstances exist which render it necessary for him to take immediate action. In other
words the executive head should be satisfied that the circumstances are so urgent and the
matter is so important that it brooks no delay and that it is not possible to await a regular
session of Parliament or the State legislature for the enactment of the required law or for the
modification of the existing one.

The president or the Governor, as the case may be, of course is to be satisfied in the
constitutional sense like other matter here too, and they are to act on the advice of the Council
of Ministers.48 This has been clearly stated by that the Supreme Court in Bank
Nationalisation, and A.K . Roy. Therefore, it is possible to contend that the whole exercise is
only meant to bypass the legislative body, and therefore it may be argued that the President’s
or the Governor satisfaction should be judicially reviewed on certain grounds. In the last
section of this part, we shall examine the merits of such a contention and shall also explore
the possibilities of such an argument being accepted by the Supreme Court.49

IS ORDINANCE JUDICIALLY REVIEWABLE

43
R.C. Copper v. UOI AIR 1970 SC 564 ; 1970 SCR (3) 53
44
State of Punjab v. Satpal Dang 1969 AIR 903, 1969 SCR (1) 478
45
Dr. Subhash C. Kashyap, The Framing of India’s Constitution: A Study
46
Glanville Austin, Working a Democratic Constitution 173–195 (Oxford University
Press, New Delhi, 1999).
47
Hanumanthappa, Law Making Power of the Governor: Ordinances, Journal of Parliamentary Information,
1977, p. 402
48
Statistical Handbook, 2007, Ministry of Parliamentary Affairs
49
M.P. Jain, Indian Constitutional Law, Vol. 1, Wadhwa and Company, Nagpur, 2003, p. 426.

10
The 38th amendment act introduced a sub-clause 4 under Article says that the satisfaction of
the President mentioned in Clause (1) shall be final and conclusive and shall not be
questioned in any Court on any ground. The deletion of this clause is proves that the
Parliament wants that the “the President's satisfaction should not be 'final and conclusive"
and that it should be open to judicial scrutiny.”50 The Indian Constitution is not based upon
the strict separation model of American Constitution; there is also a difference in the position
and power of the President in India and America. 51 The American President is answerable to
the people as they directly elect them, but it is not the case in India; in India the executive
power is vested on the President but is subjected to the aid and advice of the Council of
Minister.52 The ‘satisfaction’ under Article 123 (1) is not the personal satisfaction of the
President, but it is originally the satisfaction arrived at on the advice of the Council of
Minister; with whom actually the executive power resides.53The court also held that just
casual passing challenge to the existence of circumstances will not be enough to pass the
burden of proof to the executive to establish these circumstances; it is for the petitioner to
make out at least a prima facie case to show that there could have no such circumstances
exist to issue an ordinance.54

The court left the question of judicial review of the President’s satisfaction in the
promulgation of an ordinance as the Ordinance has been replaced by an Act and the material
placed before the court is not enough to arrive at a certain conclusion. However, the court
said that it is arguable that “that judicial review is not totally excluded in regard to the
question relating to the President's satisfaction” when the satisfaction of the President is
questioned on the ground of mala fides.

In the case of S.K.G. Sugar Ltd. v. State of Bihar, it was held that promulgating of an
Ordinance is a matter purely for the subjective satisfaction of the Governor, he is the sole
Judge to consider the as to the existence of the circumstances which makes it necessary to
50
Supra note 9; p. 723
51
Krishna Kumar Singh & Others vs State of Bihar < https://indiankanoon.org/doc/107225908/> accessed on
25th October 2019.
52
Sudhir Krishnaswamy, Democracy and Constitutionalism in India (Oxford University Press, New Delhi,
2010).
53
Durga Das Basu, Commentary on the Constitution of India 5509 (Wadhwa 8th ed. 2007) (1950).
54
Supra note 9; p. 724-725 Presidential Legislation in India – The Law and Practice of Ordinances by
Shubhankar Dam (Cambridge, 2010)

11
issue an Ordinance and “his satisfaction is not a justiciable matter.” 55 In another case it was
held that the court cannot question the propriety of the President’s satisfaction in a given
circumstances, as to whether those circumstances called for any action by promulgating an
Ordinance.56

However, in the case of Barium Chemicals,57 it was held that it was incorrect to say that the
empowerment of authority by the legislature to act upon his satisfaction is totally out of the
purview of judicial review. As the satisfaction comes with a requisite condition to be fulfilled
before the exercising the power, it was open to the Petitioner to show that the condition
precedent were not present.58 Similar view was suggested in the case of R.C. Cooper59 that an
aggrieved person can challenge the ordinance making power if in the case there is no genuine
satisfaction can be deferred from the circumstances and facts of the case. As ordinance
making is a legislative function of a President, and has the same effect of an act passed by the
Legislature, the court cannot question on the “non-application of the mind” or motive behind
the exercise of the legislative power by the President (or Governor) until it violates the
Constitutional limitations.60 Similar views were given by the court in the case of Wadhwa,
where it said that the satisfaction of the (President or) Governor as to the existence of
circumstances which renders it necessary to make immediate action by issuing an Ordinance
cannot be examined by the Courts.61

Further, the situation as today it has been settled that the “satisfaction” of a President or a
Governor must be based on such facts and circumstances which show “objectivity even in
subjectivity.”62 The constitutionalism abhors absolutism; the constitution itself provides for
that the rule of law promises that the subjective satisfaction is substituted by objectivity. 63 In
the case of S. R. Bommai v. Union of India, it has been expanded the scope of judicial review,
where it was told that where the action is taken without relevant materials would fall under

55
AIR 1974 SC 1533: (1974) 4 SCC 827; p. 832
56
Supra note 9; p. 724
57
Barium Chemicals v. Company Law Board AIR 1967 SC 295; p. 301, 323
58
History of Ordinances in India <https://islidedocs.com/philosophy-of-money.html?utm_source=summary-of-
history-of-ordinances-in-india > accessed on 24th October 2019.
59
R.C. Cooper v. Union of India AIR 1970 SC 564; pg. 586-87
60
K. Nagaraj v, State of A.P. AIR 1985 SC 551: (1985) 1 SCC 523; p. 548-49
61
Supra note 11; p. 590
62
Durga Das Basu, Commentary on the Constitution of India 5513 (Wadhwa 8th ed. 2007) (1950).
63
Subhas Kashyap, Our Parliament (National Book Trust, New Delhi, 2004)

12
the category of “obviously perverse” and action would be considered to be taken in bad
faith.64

The court held in the Bommai’s case that the “satisfaction” of the president while declaring
emergency under Article 356(1) is open to challenge on the grounds mala fides or being
based on extraneous and/or irrelevant grounds. Judicial review can also be done in the case
where the power has been exercised mala fide, or under misconception of the scope and
nature of power, or not taking into account relevant considerations is considered to be void
and ultra vires.65

AUTHORITY OF AN ORDINANCE

Article 123 provides that an ordinance promulgated under that article has the same force as
an Act of Parliament and that the power of the President to promulgated an ordinance is
coextensive with the power of the Parliament to pass law. Similarly, Article 213 provides that
the authority of an ordinance promulgated under that Article shall be the same as that of an
Act of the State Legislature and that power of the Governor to promulgate an ordinance is
coextensive with the power of the power of the State legislature to of Law 66. In other words,
the President cannot promulgated an ordinance on an item in the State list nor can the
Governor promulgated an ordinance on an item in the State List nor can the Governor
promulgate an ordinance is coextensive with the power of the state legislature pass the Law. 67
68
Unsuccessful attempt have been made to read additional limits on the ordinance-
promulgated power69. Thus in R.K.Garg v. UOI70 , it was contended that the power to tax is
so fundamental and so much associated with the principle of democratic representation that it
should be understood to be excluded from the purview of the power to legislate by
promulgating an ordinance.71 But relying on the language of Article 123 and 213, the
contention was rejected.72 Similarly, in A.k Roy,73 it was argued that since in Article 21

64
Sarkaria Commission Report on Centre-State relations, para 5.18.10.
65
Supra note 44
66
Venkata v. State of A.P. AIR 1985 SC 724: (1985) 3 SCC 198; p. 211-12 30
67
See also Durga Das Basu, Commentary on the Constitution of India 5509 (Wadhwa 8th ed. 2007) (1950).
68
Barium Chemicals v. Company Law Board AIR 1967 SC 295; p. 301, 323 31
69
R.C. Cooper v. Union of India AIR 1970 SC 564; pg. 586-87
70
R.K.Garg v. UOI 1982 133 ITR 239 SC
71
See Shubhankar Dam, „Constitutional Fiats: Presidential Legislation in India‟s Parliamentary Democracy‟
72
Subhash C. Kashyap, Constitutional Law of India 1205 (Universal Law Publishers) (2008).
73
K.V. Rao, Parliamentary Democracy of India (A Critical Commentary), 1961

13
essentially afforded protection against executive action unsupported by the law, the ordinance
–making power of the president and that of the Governor should not be read as so practically
empower them first to frame a law and then to deprive a person of his precious rights to life
and personal liberty, but this contention was also rejected. However, there are two things
which cannot be done by an ordinance.74

The President of India cannot amend the Constitution by the ordinance nor can the Governor
ratify an amendment on behalf of the State legislature. The reason is that an amendment of
the Constitution is different from outside the ordinary legislative process. Secondly, the
President or Governor cannot by promulgating an ordinance authorities the withdrawal of
moneys from the consolidated fund of India or that of the State, as the case may be. 75 The
reason is that before an Appropriation Act76 is passed by the Union Parliament or the state
Legislature, the Lok Sabha or the Vidhan Sabha, as the case may be, have to vote the grants
as provided in Article 203 and 204 in the case of the State Government. 77 Technically
speaking, however, an ordinance can be a temporary substitute for the Appropriation Act
provided the grants have been voted by the Lok Sabha or the Vidhan Sabha , as the case may
be.78

ORDINANCES: ENCROACHMENT OF EXECUTIVE ON LEGISLATIVE

DOMAIN

On several occasions, the Government of the day has faced widespread criticism for its
frequent and large-scale resort to executive legislation through Ordinances. Speakers of the
Lower House, on many occasions, have expressed disapproval over the frequent use of this
constitutional provision.79 It has been generally held that Ordinances by themselves are not
very welcome, especially so when the date (for session of the House) is very clear and also
very near80. In such cases, unless there are very special reasons, Ordinances should be
avoided. The first Speaker of the Lok Sabha had categorically observed: “The procedure of

74
See also Soli Sorabjee, „Decision of the Supreme Court in S. R. Bommai v Union of India‟ (1994) 3 Supreme
Court Cases (Jour) 1.
75
H.M. Seervai, Constitutional Law of India Vol. II 1130 (Universal Law Publishers 4th ed. 2003).
76
Statistical Handbook, 2007, Ministry of Parliamentary Affairs
77
For a summary of these ordinances, see Hans Raj, Executive Legislation in Colonial India 1939-1947
(Anamika Prakashan, New Delhi, 1989).
78
A. V. Dicey, An Introduction to the Study of the Law of the Constitution 40 (Universal Law Publishing, New
Delhi, 2003).
79
Era Sezhiyan, ‘Perverting the Constitution’ Frontline, Vol 18 Issue 25, Dec 08-21, 2001
80
Constituent Assembly Debates, Vol. VIII, p. 201-202

14
the promulgation of Ordinances is inherently undemocratic. 81 Whether an Ordinance is
justifiable or not, the issue of a large number of Ordinances has psychologically a bad effect.
The people carry an impression that Government is carried on by Ordinances. 82 The House
carries a sense of being ignored, and the Central Secretariat perhaps get into the habit of
slackness, which necessitates Ordinances, and an impression is created that it is desired to 83
commit the House to a particular legislation as the House has no alternative but to put its seal
on matters that have been legislated upon by Ordinances 84. Such a state of things is not
conducive to the development of the best parliamentary traditions.”

A REGULAR LEGISLATION AND AN ORDINANCE: COMMONALITIES AND

DIFFERENCES

Article 123 (2) provides that an Ordinance issued under it, shall have the same force and
effect as an Act of Parliament. Thus, there is hardly any difference between a regular Act
and an Ordinance. A detailed look at some of the similarities and differences would make this
point clear:

 An Ordinance made by the President is not an executive, but a legislative act. Hence,
it is a ‘law’ within the meaning of Constitution. The power of the President to
legislate by Ordinance during recess of the Union Parliament is co-extensive with the
legislative power of the Parliament itself. 85 An Ordinance, therefore, cannot be
promulgated with respect to a subject which is beyond the legislative competence of
Parliament.86
 The initiative for both a regular legislation and an Ordinance comes from the
Executive. In case of the former, the Legislature passes legislation on a current basis,
while in the later, the legislative sanction is post facto.87
 Unlike the passing of a regular Bill, there is no scope for detailed discussion and
arriving at consensus at the time of promulgation of Ordinances.88

81
K.V. Rao, Parliamentary Democracy of India (A Critical Commentary), 1961
82
Dr. Subhash C. Kashyap, The Framing of India’s Constitution: A Study
83
Oxford Advanced Learner’s Dictionary 458 (4th ed. 1948)
84
Statistical Handbook, 2007, Ministry of Parliamentary Affairs
85
M.P. Jain, Indian Constitutional Law, Vol. 1, Wadhwa and Company, Nagpur, 2003, p. 426.
86
Assembly Debates <https://indiankanoon.org/doc/843976/> accessed on 23rd October 2019
87
Durga Das Basu, Commentary on the Constitution of India 5513 (Wadhwa 8th ed. 2007) (1950).
88
Dr. Subhash C. Kashyap, The Framing of India’s Constitution: A Study

15
  Like money bills and finance bills, there can be Ordinance on fiscal matters as well.89
 Like an Act of Parliament, an Ordinance is subject to judicial review, on grounds of
unconstitutionality90. It has also been held by various courts that just as the propriety
of the exercise of legislative power or the motives of the Legislature in passing a law
cannot be questioned in a court of law, similar is the case with Ordinance passed
under Article 123.91 The only function of the Court is to declare it invalid, if it
transgresses the constitutional limits of the power.92
 Whereas the life of an Act made by Parliament would depend upon the provision in
the Act, the life of an Ordinance can in no case extend beyond six weeks from the
date of reassembly of Parliament. An Ordinance may be withdrawn by the President
at any time before it ceases to have effect, but an Act of Parliament cannot be
withdrawn; it can only be repealed by another Act of Parliament.93
 An Ordinance is equally subject to the limitations and constraints which are put upon
the Parliament by the Constitution, such as, abridgement of Fundamental Rights.
There are no additional restraints upon the Ordinance making power of the
President94.
The President may issue an Ordinance to enforce the provisions of a Bill introduced in,
and pending before a House; or to enforce the provisions of a Bill already passed by one
House but not yet passed by the other House. Ordinance can also be on a completely new
matter to be replaced subsequently by a Bill to be brought before the House or for a purpose
not requiring permanent legislation.95

PROMULGATION OF ORDINANCES: AN UNHEALTHY TREND

If we leave aside the exact constitutional provisions and regulations, Parliamentary rules and
procedures regarding the Ordinance making power of the President or in real terms, the
executive, what ground reality can be gauged? Would it be possible to reach a conclusion as
89
Era Sezhiyan, ‘Perverting the Constitution’ Frontline, Vol 18 Issue 25, Dec 08-21, 2001
Constituent Assembly Debates <https://indiankanoon.org/doc/843976/> accessed on 23rd October 2019
90

R.C. Copper v. UOI AIR 1970 SC 564 ; 1970 SCR (3) 53

91
Presidential Ordinances 1950-1984, Lok Sabha Secretariat, 1985
92
Niraja Gopal, (ed.), Democracy in India, OUP, 2001
93
Article 361 of the Constitution <https://indiankanoon.org/doc/1470888/> accessed on 23rd October 2019
94
A. G. Noorani, Constitutional Questions in India: The President, Parliament and the States, OUP, 2000
95
M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament (with particular reference to Lok Sabha),
Fifth edition

16
to the use of this provision over the years, i.e. whether it has been done in good faith or the
power has been abused or misused at the whims and fancy of the Government of the day. 96
The Ordinance making power of the President is contingent upon the prorogation of either
House of the Parliament. If an Ordinance is promulgated before the order of prorogation is
made and notified, the Ordinance is void. It has been established through various court cases
that the action of the President in proroguing Parliament simply for the purpose of making an
Ordinance cannot be challenged.97

Even if, one of the two Houses is in session, an Ordinance may be promulgated. This
particular provision has been widely debated over the years. If we look at the figures
regarding the Ordinances promulgated during the period from 26 January 1950 to 31
December 2007, a number of facts come to light. During this span of 57 years, a total number
of 592 Ordinances were issued.98 Thus, one thing becomes clear that this power has not been
used sparingly to meet extraordinary situations, which could not withstand any delay till the
next meeting of the Parliament.99 During the period from 26 January 1950 to 31 December
1984, in all 348 Ordinances were promulgated. There were 23 instances during this period
when Ordinances were promulgated for the purpose of levying taxes or duties. 100 Out of the
348 Ordinances, there had been 56 instances when Ordinances were promulgated after a lapse
of less than 10 days since the termination of the session of the House or before the
commencement of the following session.101

CONCLUSION

The Ordinance making power of the executive was one such provision, which though
adverse to democratic ideals, was conjured up to tide over any emergent situation. It has been
used over the decades satisfying the purpose for which it was meant and also misused at
times, for it is not possible in a democratic order to insulate completely the domain of law
from that of politics. Any constitutional law in order to be effective has to be based on a
sound foundation of constitutional morality. As a noted scholar has rightly observed, in the

96
K.V. Rao, Parliamentary Democracy of India (A Critical Commentary), 1961
97
P.M. Bakshi, The Constitution of India with selective comments
98
Presidential Ordinances 1950-1984, Lok Sabha Secretariat, 1985
99
A. G. Noorani, Constitutional Questions in India: The President, Parliament and the States, OUP, 2000
100
D.D. Basu, Commentary on the Constitution of India, Seventh edition, Vol G/1, 1993

101
Niraja Gopal, (ed.), Democracy in India, OUP, 2001

17
absence of constitutional morality, the operation of a Constitution, no matter how carefully
written, tends to become arbitrary, erratic and capricious. As the Founding Fathers of our
Constitution have remarked, constitutional morality is not a natural sentiment but one which
needs to be cultivated. Therefore, irrespective of the steps taken by the Government or those
by the Parliament in dealing with such special provisions, a sincere attempt should be made
to develop the virtues of accountability and constitutional morality.

BIBLIOGRAPHY

Books

1. Constitution of India
2. Constituent Assembly Debates, Vol VII and Vol VIII
3. D.D. Basu, Commentary on the Constitution of India, Seventh edition, Vol G/1, 1993
4. M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament (with particular
reference to Lok Sabha), Fifth edition
5. Yogendra Narain, (ed.), Rajya Sabha at Work, Rajya Sabha Secretariat, 2006
6. Presidential Ordinances 1950-1984, Lok Sabha Secretariat, 1985
7. Dr. Subhash C. Kashyap, The Framing of India’s Constitution: A Study
8. K.V. Rao, Parliamentary Democracy of India (A Critical Commentary), 1961

18
 9. P.M. Bakshi, The Constitution of India with selective comments
10. K.M. Munshi, The President under the Indian Constitution
Articles
1. Arun Jaitley, ‘POTO Pin-Up’ Times of India, 13 December 2001
2. Justice B. P. Jeevan Reddy Committee Report on the Armed Forces (Special Powers)
Act 1958, 74 available at: http://www.hindu.com/nic/afa/afa-part-iv.pdf (accessed 28
September 2019).
3. Kapil Sibal, ‘Politics of POTO: Nothing Anti-national about Dissent’ Times of India,
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4. Pradeep Thakur, 'Ordinance Raj: 8 in 225 days of Modi govt' Times of India, 8
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8-in-225-days-of-Modi-govt/articleshow/45802178.cms (accessed on 28 September
2019)
5. R. Venkataraman, ‘To Stop Office-of-Profit Axe, UPA Gets Ordinance’ Indian
Express, 21 March 2006.
6. Samantha Subramaniam, ‘The Long View: AFSPA’s Bitter Roots’ New York Times,
21 November 2011, available at: http://india.blogs.nytimes.com/2011/11/21/the-long-
view-afspas-bitter-roots/#more-8705 (accessed 28 September 2019).
7. Sidharth Varadarajan, ‘Reject POTO in Toto’ Times of India, 14 November 2001.

19