Explained: Ordinance making power of the President
What is an ordinance?
An ordinance is any law promulgated by the President in those circumstances when the Indian parliament is not in session.
What does the constitution say?
The ordinance making powers of the President are listed in Article 123 of the Constitution.
The President has certain law-making powers that aid him to promulgate ordinances when either of both the Houses of Parliament is not in session which makes enacting laws in the parliament out of question.
An Ordinance can be issued on any subject that the Parliament has the power to legislate on. In that way, the president’s powers are limited in the same way as the Parliament is.
Limitations of the President’s Power:
The ordinance making power of the executive is limited through the following:
- The legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
- Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
- Parliamentary approval during the session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They would also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Features and Properties of the Ordinance:
- An ordinance can be retrospective, that is it can be legislated from before the time it is approved.
- An ordinance promulgated when Parliament is in session is considered null and void.
- The Ordinance in order to stay a law must be approved by the Parliament within six weeks from its reassembly. Its existence ceases in case the parliament takes no action within six weeks from its reassembly.
- Acts and laws and happenings that took place under the ordinance remain active till the time it lapses.
- Indian President is one of the rarest ones among the world leaders to have the power of making ordinances.
- The power of ordinance promulgation cannot be considered a substitute for the President’s legislative power.
- President’s power to roll out ordinance is justiciable in case intentions are proved mala fide.
- Ordinances can only be made on the subjects where the Indian Parliament is allowed to make laws.
- Fundamental Rights of the citizens guaranteed by the Indian Constitution cannot be taken away through an ordinance.
- The ordinance would also be considered void in case both the houses pass a resolution disapproving it.
When the President’s decision was challenged?
In RC Cooper vs. Union of India case in 1970, the Supreme Court examined the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969. The ordinance sought to nationalize 14 of India’s largest commercial banks. It then held that Indian President’s decision could be challenged as any ‘immediate action’ was not required on the issue and the Ordinance was promulgated only to by-pass any debate in the legislature. There are many such instances like this.
After this 38th Constitutional Amendment Act inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
The largest number of Ordinances was promulgated in the year 1993, and there has been a decline in the number of Ordinances promulgated since then. However, the past year has seen a rise in the number of Ordinances promulgated.
The Government of India has however re-promulgated four ordinances within two years. The Coal Mines (Special Provisions) Ordinance, 2014 has been brought into action twice. The Land Acquisition Ordinance has been implemented thrice. It lapsed later. The Negotiable Instruments (Amendment) Ordinance, 2015 was promulgated twice and the latest Enemy Property Ordinance is the fourth promulgation.