Ordinance Making Power of the President

Ordinance Making Power of the President

In Article 123 of the Indian Constitution, the President is given the authority to enact laws. When the Indian parliament is not in session, the President of India may enact an ordinance as law. These ordinances are simply temporary laws, but they have the same authority and impact as a parliamentary act. Unexpected or urgent issues have been given to the President to handle.

The ordinance making power of president is an important part of Indian Polity which an important subject in UPSC Syllabus. Students can also go for UPSC Mock Test to get more accuracy in their preparations.

Ordinance Making Power of the President Meaning

It is impossible for a single House of Parliament to pass and carry out legislation due to Article 123 of the Indian Constitution, which gives the President of India significant legal authority. This power includes the ability to issue ordinances while neither of the two Houses of Parliament is in session. The Government of India Act, 1935, which gave the Governor General the power to publish Ordinances, added Ordinances to the Indian Constitution. When both chambers are in session, an ordinance is void and unenforceable.

Within six weeks of its reassembly, the Parliament must pass the ordinance. The President has the right to revoke an ordinance at any moment. But he is only permitted to promulgate or revoke an ordinance on the advice of the council of ministers, which is presided over by the prime minister. An ordinance can be retroactive, which means it can take effect as of a previous date, just like any other piece of law. Any act of Parliament or other decree may be amended or revoked by it. It may also modify or replace tax law. However, it cannot be used to change the Constitution.

Ordinance Making Power of the President History

Indian Council Act 1861 empowers the Governor-General to promulgate ordinance without the council’s concurrence during emergencies. From the Government of India Act 1935, Ordinances were included in the Constitution of India, which gave the authority to the Governor General to promulgate Ordinances.

Section 42 and 43 of this act mainly deal with Ordinance making power of the Governor General which states that “if there are circumstances that compel him to take immediate action”, only he can exercise this power. There was a lot of discussion and debate regarding the Ordinance making power, some members of the Constituent Assembly stressed that this power of the president is contrary to constitutional morality and is of extraordinary nature.

This method was created to allow the executive to deal with a situation that can occur unexpectedly and without warning when Parliament is not in session (either one or both houses). Experts argue that it should be left as a provision, that it should only be used in an emergency.

Ordinance Making Power of the President Limitation

When legislature is not in session

Only when either of the houses of the Parliament is not in session then the President can only promulgate Ordinance. An ordinance passed when both Houses are in session is null and invalid. Thus, the President’s capacity to legislate through ordinance is not a parallel legislative power.

Coextensive as regards all with the law-making powers of the Parliament

His ordinance-making authority is coextensive with the Parliament’s law-making authority in all aspects except duration. This has two implications: An ordinance may only be promulgated on issues over which the Parliament has legislative authority. An ordinance is subject to the same constitutional constraints as a Parliamentary act. As a result, an ordinance cannot limit or eliminate any of the essential rights.

Immediate action is needed

The President, although vested with the power to issue Ordinance, cannot do the same unless he is convinced that there are circumstances that require immediate action. President to issue an ordinance can be questioned in a court

Must be laid before the houses

Every ordinance issued by the President during the Parliamentary recess must be brought before both Houses of Parliament when they reconvene. If both Houses adopt the ordinance, it becomes an act. If Parliament does not take any action, the ordinance expires six weeks after the reassembly of Parliament. The ordinance may potentially be repealed sooner than the six-week period if both Houses of Parliament vote motions against it.

Ordinance Making Power of the President Judicial Review

The 38th Amendment Act added a new Clause (4) to Article 123, which states that the President’s satisfaction with the issuance of the ordinance is final and cannot be appealed to the court for any reason. However, the 44th amendment to the Indian Constitution cancelled it and made the President’s satisfaction subject to judicial review, stating that the president’s powers could be challenged in court of law, if it is based on bad faith, corrupt motives, or has any malaise of intent.

He can make an ordinance only when he is satisfied that the circumstances make it necessary for him to take immediate action. In Cooper case, (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court. Thus, the President’s satisfaction is justiciable on the ground of malafide. Further in S.R. Bommai v. Union of India, the scope of Judicial Review was expanded and any action by the President taken without the relevant materials would be considered to be in bad faith.

Ordinance Making Power of the President and Governor

Ordinance Making Power of the President UPSC

In most circumstances, the power to make ordinances is a contentious and debatable matter. It attempts to upset the balance of executive and legislative powers by introducing arbitrariness into the Constitutional System and undermining the rule of law. When an executive body exercises such ordinance-making authority, it displays disdain for the legislative. Students can read all the details related to UPSC by visiting the official website of StudyIQ UPSC Online Coaching.

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