Ordinance Making Power of President and Governor

Introduction to Ordinance:

• The word “Ordinance” is defined as a law promulgated by the State or Central Government without the approval of the Legislature. For such an ordinance to work effectively, it must not conflict with any higher law concerning state or Central law or constitutional supremacy.
• The strategy of issuing ordinances is designed to empower the executive to meet any unexpected circumstance emerging in the nation when Legislature is not in session.
• The President and the Governor are vested with legislative powers with the power to make ordinances to be used to meet certain emergencies, but the power to promulgate Ordinances is possible for them when the legislature is not in session.
• These promulgated ordinances have the same force and effect as an Act of the Legislature but these acts are likely in temporary nature.

Historical Events of Ordinance Provisions:

• The power to promulgate the Ordinance is vested in the Indian Councils Act, 1861 where section 23 of the 1861 Act gave the authority to the Governor General to issue orders accompanied by ordinances.
• Based on the act, The power to issue ordinances is subject to two conditions, namely that there must be an emergency and that the ordinance shall be in force for a period not exceeding 6 months.
• The same powers were retained in the Government of India Act, 1909, and the Government of India Act, 1935 in respect of making an Ordinance.
• Governor General as per Section 42 and 43 of the Government of India Act, 1935 has the power to promulgate ordinances only during the recess of the Legislature and on the advice of Ministers and according to his judgment, however he can under certain specific situations Overrides the ideas of ministers, but he must contact them.

Ordinance Making Power of President & Governor:

• Article 123 of the Constitution of India empowers the President to promulgate ordinances during recess of Parliament and Article 213 of the Constitution of India empowers Governors to promulgate ordinances when the legislature is not in session.
• Ordinance-making powers are the same at both levels for the Governors and the President who issue ordinances for immediate action but must lay the ordinances before the legislature when the central or state legislature reconvenes.
• The President/Governor should frame an Ordinance only when he is satisfied that the conditions necessary to take immediate action exist in that particular territory.
• Such an Ordinance shall expire six weeks after the reassembly of Parliament or a State Assembly and the maximum life of an Ordinance may be six months and six weeks because six months is the maximum interval between two sittings of Parliament.
• The President/Governor can only issue an ordinance when both the Houses of Parliament or state legislature is not in session [or] when either of the two Houses of Parliament or state legislature is not in session. that we can observe here that the power of the President or Governor to legislate by ordinance is not a parallel power of legislation.
• Ordinances can only be issued on matters on which Parliament or the Legislature can make laws and are subject to the same limitation as Parliament/Legislature to make laws.
• The President/Governor can also revoke an Ordinance at any time but his power to make/revoke an Ordinance is not discretionary, and he can promulgate or revoke an Ordinance only on the advice of the Council of Ministers headed by the prime minister in the parliament or Council of Ministers headed by the chief minister in the assembly
• The Governor of a State cannot make an ordinance without the reference of the President in the following cases :

1. Bills that have similar provisions require the prior approval of the President to introduce the Bill in the Assembly.
2. Which Bills contain similar provisions, where the Governor has already considered reserving the Bills for consideration of the President.
3. Which bills contain the same provisions, where those provisions should require the assent of the President.

• An Ordinance promulgated by the President/Governor may be retrospective, meaning it may come from an earlier date and may amend or repeal any Act or Ordinance already in force.
• An Ordinance issued by the President/Governor shall not take away any fundamental rights, shall not be issued to amend the Constitution, and shall not affect the basic structure of the Constitution.
• The President’s ordinance-making power has nothing to do with national emergence and is issued even in the absence of war or external aggression or armed rebellion. The Constitution affirms that the power to make ordinances is designed to enable the executive to deal with a situation arising suddenly and immediately When the Parliament/Assembly is not in session.

Judicial Perspective on the Ordinance-Making Power:

• The 38th Constitutional Amendment Act of 1975 made the President’s satisfaction on the Ordinance Making Power beyond the Judicial review, but this provision was deleted by the 44th Constitutional Amendment Act of 1978 based on Supreme Court judgment which held that the President’s satisfaction is justifiable on the ground of malafide.
• In the RC Cooper vs. Union of India (1970) case, The Supreme Court ruled that the President’s decision on an ordinance can be challenged on the ground that the ordinance concerned does not require immediate action, or the ordinance is passed primarily to bypass discussion and debate in the legislature.
• In the D.C. Wadhwa case (1987), The Supreme Court ruled that consecutive promulgation of Ordinances with the same text without any attempt to pass the Bills in the Parliament/Assembly is unconstitutional and such type an ordinance shall be dismissed.
• The constitutional and legal validity of an ordinance executed by the President/Governor may be prepared to be challenged in the courts on the following grounds:

1. If It is against any fundamental rights enshrined in our constitution.
2. If it is a violation of important provisions and the basic structure of our Constitution.
3. If Its retrospection is unconstitutional.
4. If the President’s indulgence in the ordinance-making power reflects a mala fide nature.

Conclusion:

In most cases the making of power of ordinance is a contentious issue, It seeks to upset the balance between executive and legislative powers by introducing the element of Discretion on the one hand into the constitutional system and disrupting the rule of law. In fact, the satisfaction of the President is actually the satisfaction of the Council of Ministers, That means the executive should exercise self-restraint and exercise ordinance-making power only in unexpected or urgent conditions and legislative consideration and debate should not be avoided.

Related Frequently Asked Questions and Answers:

1Q. What do you mean by Ordinance?

Ans: The word “Ordinance” is defined as a law promulgated by the State or Central Government without the approval of the Legislature. The strategy of issuing ordinances is designed to empower the executive to meet any unexpected circumstance emerging in the nation when Legislature is not in session. The President and the Governor are vested with legislative powers with the power to make ordinances to be used to meet certain emergencies, but the power to promulgate Ordinances is possible for them when the legislature is not in session. These promulgated ordinances have the same force and effect as an Act of the Legislature but these acts are likely in temporary nature.

2Q. What are the Constitutional Provisions regarding Ordinance-Making power?

Ans: Article 123 of the Constitution empowers the President to promulgate ordinances during recess of Parliament and Article 213 of the Constitution empowers Governors to promulgate ordinances when the legislature is not in session. Ordinance-making powers are the same at both levels for the Governors and the President who issue ordinances for immediate action but must lay the ordinances before the legislature when the central or state legislature reconvenes.

3Q. What are the limitations of the ordinance-making power of the President?

Ans: The power of the President or Governor to legislate by ordinance is not a parallel power of legislation, The President/Governor can only issue an ordinance when both the Houses of Parliament or state legislature is not in session [or] when either of the two Houses of Parliament or state legislature is not in session. It must lay the ordinances before the legislature when the central or state legislature reconvenes. Such an Ordinance shall expire six weeks after the reassembly of Parliament. Ordinances can only be issued on matters on which Parliament or the Legislature can make laws and are subject to the same limitation as Parliament/Legislature to make laws. President or Governor can promulgate or revoke an Ordinance only on the advice of the Council of Ministers headed by the prime minister in the parliament or Council of Ministers headed by the chief minister in the assembly.

4Q. On what grounds can an ordinance passed by the President be challenged?

Ans:

• If It is against any fundamental rights enshrined in our constitution.
• If it is a violation of important provisions and the basic structure of our Constitution.
• If Its retrospection is unconstitutional.
• If the President’s indulgence in the ordinance-making power reflects a mala fide nature.