Ordinance Issuing Power (Article 123)

INTRODUCTION

The most important legislative power of the President is his Ordinance-making power. If at any time, when both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may issue such Ordinance as the circumstances appear to him to require. The Ordinances issued by him shall have the same force as an Act of Parliament. Such Ordinances, however, must be laid before both Houses of Parliament and shall cease to operate, at the expiry of six weeks from the date of re-assembly of Parliament, unless a resolution disapproving it is passed by both Houses before the expiration of six weeks. The President may, if he likes, withdraw such an Ordinance at any time. An Ordinance promulgated under Article 123 is a law having the same force and effect as an Act of Parliament. It cannot be treated as an executive action or an administrative decision. The Ordinance-making power has been vested in the President to deal with unforeseen or urgent matters.

The Ordinance-making power is exercised by the President on his own ‘satisfaction’. The court cannot inquire into the reasons for the subjective satisfaction of the President or into the sufficiency of those reasons. The existence of necessity for promulgating the Ordinance is not justiciable. The validity of an Ordinance cannot be tested on grounds similar to those on which an executive or judicial action is tested.

An Ordinance passed under Articles 123 and 213 stands on the same footing[1].Thus the validity of an Ordinance cannot be challenged on the grounds of non-application of mind, more so when it has been promulgated on the basis of a policy decision taken by the government. An Ordinance can be issued only when both the Houses of the Parliament are not in session. It follows from this that an Ordinance can be issued when only one House is in session because a law cannot be passed by one House alone. It is to be noted that the satisfaction is not the personal satisfaction of the President. In reality, it is the satisfaction of the Cabinet on whose advice the President exercises his Ordinance-making power. The Ordinance-making power of the President is co-extensive with the legislative power of the Parliament, that is to say, that it may be related to any subject in respect of which Parliament has power to legislate. Hence, an Ordinance will be void in so far it makes any provision which under the Constitution the Parliament is not competent to make. Thus, an Ordinance cannot violate the fundamental rights.

CASE LAWS

The validity of the Ordinance-making power of the President had been challenged in a number of cases and the court has upheld its constitutionally in all its decisions. In R. K. Garg v. Union of India[2], a five-Judge Bench of the Supreme Court by 4:1 majority held that the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981, was not ultra vires of Article 123 of the Constitution. The President is competent to issue an Ordinance amending or altering the tax laws. The Ordinance making power is co-existence with the power of Parliament to make laws and no limitation can be read into the legislative power of the President. The object of conferring the Ordinance making power on President is to enable the executive to deal with the unforeseen or urgent matters which might well include a situation created by a law being declared void by a court of law.

Article 123 or 213 cannot be said to be undemocratic.

In A. K. Roy v. Union of India[3], the court by 4 : 1 majority held that the National Security Ordinance was valid and not violative of Article 14. The Ordinances issued by the President under Article 123 stand on the same footing as laws passed by legislatures. The majority, however, held that the Ordinance would be subject to the test of vagueness, arbitrariness, reasonableness, public interest and that it was passed only when the legislatures were not in session.

These two decisions have been followed in the L.l.C. Bonus & D.A. case,in upholding the validity of the L.l.C. Bonus and D.A. Amendment Act, 1981.

The power to issue an Ordinance is power of the executive to legislate. The power is plenary within its field and there are no limitations upon that power except those to which legislative power of the State is subject to. Therefore, though an Ordinance can be invalidated for contravention of constitutional limitations it cannot be invalidated on grounds of non-application of mind or mala fides. An executive act can be struck down on the ground to non-application of mind, not the Act of a Legislature.

The case of D. C. Wadhwa v. State of Bihar[4],furnishes a glaring example of abuse of Ordinance-making power. The Court pointed out that between 1967 and 1981 the Bihar Governor promulgated 256 Ordinances and all these were kept alive for periods ranging from one to 14 years by re-promulgation from time to time. Out of these 256, 69 were re-promulgated several times with the prior permission of the President of India. The Court called it a “subversion of the democratic process” and “colorable exercise of powers” and held that this amounted to a fraud on the Constitution and hence unconstitutional. The Executive cannot usurp the function assigned to the legislature under the Constitution. The matter was brought before the Court by a professor who had carried detailed research in the matter. The Court directed the Bihar Government to pay Rs. 10,000 to the petitioner for expenses as a result of whose research work the abuse of the Ordinance- making power by the Government was brought to the knowledge of the Court.

CONCLUSION

In no country, except India, the Executive is vested with legislative power.

The Indian Constitution expressly confers power to make Ordinances on the President. The power to make Ordinances is justified on the ground that the President must be armed with powers to meet with serious situation when the Houses of Parliament are not in session. It is not difficult to imagine the cases when ordinary law-making powers may not be able to deal with a situation which may suddenly and immediately arise. Article 123 cannot be said to be undemocratic. In such circumstances, the executive must have power to take immediate action by issuing Ordinances.

REFERENCES

CONSTITUTION OF INDIA BY J.N. PANDEY

https://byjus.com/free-ias-prep/ordinance-making-powers-of-the-executive-in-india/


[1] T. Venkata Reddy v. State of A. P., (1985) 3 SCC 198.

[2] AIR 1981 SC 2139

[3] AIR 1982 SC 710.

[4] (1987) 1 SCC 378.

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