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Constitutional Provisions for Ordinance-Making Power of the President

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ORDINANC-MAKING POWER OF PRESIDENT Law Insider

By Ayushi Budholia

Published on: 12 August 2022 at 21:50 IST

INTRODUCTION

The Article provides for the power of the President to promulgate ordinances when the Parliament is not in session. The ordinances promulgated during such period will have the same force and effect as any either Act passed by Parliament. The ordinance making power under this Article will have the same restrictions as the Parliament have in this Constitution.

The Constitution of India is the largest written Constitution of the world. It is divided into 25 Parts and 12 Schedules. Article 123 of the Constitution of India deals with the Power of president to promulgate ordinances during recess of Parliament. A similar power if given to the Governor under Article 213 of the Constitution of India to Promulgate ordinances during the recess of the Legislature.

The Oxford Dictionary defines “Ordinance” as an order or a rule made by a government or somebody in a position of authority. It is a decree or law promulgated by a state or national government without the consent of the legislature.

Ordinances are like a law but not enacted by the Parliament but rather promulgated by President of India when Lok Sabha and Rajya Sabha or either of those is not in session. Union Cabinet’s recommendation is a must for an ordinance to be promulgated. Using ordinances, immediate legislative actions can be taken.

This Article will give a detail analysis of Ordinances promulgated by the President of India under Article 123 of the Constitution of India.

WHAT DOES ARTICLE 123 SAYS?

  • The Constituent Assembly Debate

The Power of President to promulgate Ordinances during recess of Parliament was laid down in Article 102 of the Draft Constitution, 1948. It provided as follows:

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament assented to by the President, but every such Ordinance-

(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and

(b) May be withdrawn at any time by the President.

Explanation:–Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

On 23rd May 1949, the Constituent Assembly debated on this Article.

It was proposed by one member of the Constituent Assembly that in Clause (1) the Ordinance making power of the President be restricted to when neither House of Parliament was in session.

Dr. B.R. Ambedkar, the Chairman of the Drafting Committee countered that this would render the power useless because both Houses of Parliament was involved in the passage of legislation. Hence, it was necessary to allow the President to exercise these powers even if one House was in session, because then ‘the framework for passing law in the ordinary process does not exist’.

It was proposed by another member that a proviso should be included in Clause (1) that no ordinance could ‘deprive any citizen of his right to personal liberty except on conviction after trial by a competent court of law.’

Dr. B.R. Ambedkar stated that clause (3) of the Draft Article already stipulated that ordinances would be ‘subject to the same limitations as a law made by the legislature by the ordinary process’, including the requirement to pass laws that were congruent with the Fundamental Rights. Since Draft Article 15 (Article 21) already provided this protection to citizens, this amendment was unnecessary.

Another member of the Constituent Assembly proposed an amendment which required ordinances to be placed before Parliament within four weeks from the date of promulgation.

In response, the Chairman of the Drafting Committee contended that these amendments did not account for emergency situations in which Parliament simply could not reconvene within the stipulated time frame.

Further, it was argued that this was an emergency power with a very restricted scope and that there were sufficient safeguards within the Draft Article and the other parts of the Constitution which would prevent misuse.

  • Article 123 in the present Constitution of India

Article 123 of the Constitution of India, 1950 says:

123. Power of President to promulgate Ordinances during recess of Parliament.—(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—

(a) 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 Houses, upon the passing of the second of those resolutions; and

(b) may be withdrawn at any time by the President.

Explanation.—Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

(4) [omitted]”

According to Clause (1) of this Article, the President have ordinance making power during the period Parliament is not in session, but an immediate action is required. It is important to note that the session of a House comes to an end on its prorogation or dissolution. If one House is sitting, but the other is not, an ordinance may be issued.

According to Clause (2), any ordinance promulgated under this Article shall have the same force and effect as an Act of Parliament. It is further provided under this Clause that every ordinance must be laid before both Houses. It ceases to operate at the expiration of six weeks from the reassembly of the Parliament; or if before the expiration of that period, resolutions disapproving the ordinance are passed by both Houses, it ceases to operate from the date of the passing of the second of those resolutions. Where the House of parliament are summoned to assemble on different dates, the period of six weeks shall be reckoned from the later of those dates. If the ordinance is allowed to lapse without being placed before Parliament, it cannot be treated as void ab initio and acts done are completed under it before it ceases to operate remain fully valid and effective.

According to Clause 3, the ordinance making power if subject to the same restrictions as the power of Parliament to make laws. Thus, the President have the power to make ordinance on the matters given under List I and List III of the Seventh Schedule of the Constitution of India. However, if a proclamation of emergency is in operation, the President can make ordinance on matters included in List II also. Further, no ordinance can violate the provisions of Part III of the Constitution.

The Clause (4) of this Article was omitted by the Constitution (44th Amendment) Act, 1975.

CASE LAWS

  • A.K. Roy Vs. Union of India, AIR 1982 SC 170

The power of the President to issue an ordinance under this Article was questioned in respect of the National Security Ordinance 1980. The Supreme Court held that judicial review of the President’s satisfaction regarding the necessity to issue an ordinance is not totally excluded. The satisfaction of the President cannot be regarded as a purely political question and kept beyond judicial review.

  • T. Venkata Reddy Vs. State of A.P., AIR 1985 SC 724

The Supreme Court held that since the ordinance making power in Article 123 and 213 is of legislative character, like the exercise of legislative power, its exercise cannot be questioned on grounds of motives or non-application of mind or on grounds of its propriety, expediency and necessity.

CONCLUSION

On May 23, 1948, the Constituent Assembly debated Article 102 of the Draft Constitution, 1948. The article discussed the power of the president to promulgate ordinances during a recess of Parliament. After deep discussion and debate, the article was adopted. During the enactment of the Constitution, this power was given under Article 123 of the Constitution of India, 1950.

ABOUT THE AUTHOR

Ayushi Budholia is a third-year, B.A.LL.B student of Lloyd Law College, Greater Noida.

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