Ordinance making power of the President under Article 123 with limitations, judicial review, Supreme Court cases and constitutional safeguards. UPSC Polity Notes.

The Ordinance-Making Power of the President of India, codified under Article 123, is a crucial legislative tool wielded by the executive to address urgent matters when Parliament is not in session. While these ordinances possess the same legal force as a legislative Act of Parliament, their exercise is strictly governed by four major limitations, including the requirement for immediate necessity and ultimate parliamentary approval within six weeks of reassembly. Understanding the unique nature, the scope of judicial review after the 44th Amendment, and the concerns over repromulgation is paramount for students of Indian Polity and Constitutional Law.

Delving into the Ordinance-Making Power of the Indian President under Article 123

• The President's authority to issue ordinances is a quasi-legislative power designed to provide the government with a mechanism for timely action in the absence of the legislative branch.

  This extraordinary power, available only during parliamentary recess, is a necessary provision in a dynamic democracy, ensuring that governance is not stalled by the legislative calendar.

  • (i) The power is specifically granted by Article 123 of the Constitution, which empowers the President to promulgate ordinances.
  • (ii) These ordinances carry the same legal force and effect as a regular Act of Parliament, meaning they can create laws, repeal existing ones, or amend non-constitutional legislation.
  • (iii) The Purpose is to allow the Union Executive to effectively address genuine unforeseen or urgent matters that demand immediate legislative attention, bridging the gap when Parliament cannot convene.

• The Four Constitutional Limitations on Ordinance Power and Its Checks

  Despite their strong legal effect, ordinances are subject to severe restrictions to ensure they do not become a substitute for the primary legislative function of Parliament.

  • Limitation 1: Parliamentary Session Requirement

    The foremost check on this power is the condition that it can only be exercised when Parliament, the supreme law-making body, is not available to legislate.

    • (a) An ordinance can only be issued when one or both Houses of Parliament are not in session. If both Houses are currently sitting, any attempt to issue an ordinance is deemed constitutionally void.
    • (b) This rule underscores that ordinance-making is a subsidiary function; it is not meant to be exercised in parallel with or in defiance of the normal legislative process.

  • Limitation 2: Immediate Necessity and Judicial Review

    The President must be genuinely satisfied that the circumstances warrant the immediate use of this legislative shortcut, a determination that has evolved under the scrutiny of the Supreme Court.

    • (i) The President must be satisfied that circumstances exist that render it necessary for him to take immediate action. This subjective satisfaction has been a key point of judicial debate.
    • (ii) The initial position was challenged in the landmark Cooper Case (1970), where the Supreme Court held that the President's satisfaction could be subject to judicial review if proven to be mala fide (in bad faith).
    • (iii) While the 38th Constitutional Amendment (1975) attempted to make the President's satisfaction final and non-justiciable, the subsequent 44th Amendment (1978) wisely restored judicial review in cases of bad faith, irrationality, or extraneous considerations.

  • Limitation 3: Subject-Matter and Constitutional Restriction

    An ordinance cannot legislate on any subject that Parliament itself is barred from addressing, ensuring the temporary law remains within constitutional boundaries.

    • (i) The ordinance must cover a subject matter that falls within the legislative competence of Parliament (Union List and Concurrent List).
    • (ii) Like any regular law, an ordinance cannot violate any constitutional provision, particularly the Fundamental Rights guaranteed to citizens.

  • Limitation 4: Mandate for Parliamentary Presentation and Maximum Life

    Every ordinance has a limited lifespan and must be placed before Parliament for deliberation and approval immediately upon reassembly.

    • (i) The ordinance must be laid before both Houses of Parliament once they reassemble for a session.
    • (ii) If Parliament approves the ordinance, it passes and becomes a permanent Act. If no action is taken by either House, the ordinance automatically ceases to operate six weeks from the date Parliament reassembles.
    • (iii) The maximum life of an ordinance is calculated as six months (the maximum gap allowed between two sessions of Parliament) plus six weeks, emphasizing its inherently temporary nature.
    • (iv) It is important that any actions already executed under the ordinance before it lapses remain valid and legally binding.

• Retrospective Effect, Withdrawal, and the Constitutional Limitations

  The ordinance power is flexible enough to apply retrospectively and modify laws, but it faces a fundamental bar when it comes to the basic structure of the Constitution.

  • Scope of Application and Restriction on Constitutional Amendment

    The President, on the advice of the Prime Minister and Council of Ministers, has the power to manage the ordinance, including its lifespan and applicability.

    • (a) The President can withdraw an ordinance at any point, provided it is based on the advice of the Council of Ministers.
    • (b) Ordinances can operate retrospectively, meaning they can apply to events that occurred before their promulgation date, and they can modify or repeal other existing Acts or ordinances, and even amend tax laws.
    • (c) However, a critical restriction is that the ordinance cannot be used to amend the Constitution, reaffirming Parliament’s exclusive power over constitutional revision.

• Concerns over Repromulgation and the Supreme Court Warning

  The repeated use of the ordinance power without parliamentary deliberation, known as repromulgation, has been a contentious issue, undermining the constitutional scheme.

  • Judicial Condemnation of Executive Overreach

    While direct presidential repromulgation has not been addressed, the Supreme Court has categorically warned against the abuse of this power at the state level.

    • (i) The famous D.C. Wadhwa Case (1987) brought to light the shocking practice of the Governor of Bihar repeatedly repromulgating ordinances between 1967 and 1981, totaling hundreds of instances, without ever seeking legislative approval.
    • (ii) The court ruled that such excessive repromulgation is a “fraud on the Constitution” and a clear violation of the legislative function of Parliament or the state legislature.
    • (iii) This principle reinforces Dr. B.R. Ambedkar’s justification that ordinance power is meant for exceptional emergencies and cannot be a substitute for the regular, democratic law-making process.

• Summary: The Ordinance Power – A Temporary Legislative Tool

  The Ordinance-Making Power under Article 123 is a dynamic, yet temporary, legislative tool in the hands of the President (acting on Council of Ministers’ advice) to deal with urgent legislative necessities. Its limited lifespan and susceptibility to parliamentary review within six weeks of reassembly, combined with the Supreme Court’s strong stance against repeated repromulgation, establish it as a controlled check on governmental stability. Grasping these conditions, especially the role of judicial review post-44th Amendment, is crucial for students aiming to master the intricacies of the Indian Constitution.