One of the important provisions in the Constitution of India is regarding the ordinance making power of the executive. The nature of the Indian Constitution can be called exhaustive citing the example of the above provision. The President is the Head of the State acting on the advice of the Council of Ministers. He can exercise the executive powers allotted to him either himself or through subordinates. The legislative power to promulgate ordinances is granted to the President under Article 123. The Indian Constitution clearly differentiates the powers and functions of the Parliament and the State Legislatures, providing no room for each to encroach upon the powers and functions of the other, in accordance with the theory of separation of power. To achieve the separation of power, the government is divided into three branches, namely The Legislative, The Executive, and The Judiciary. The powers and functions of these organs are sufficiently differentiated. The motive is to ensure a fair democracy through checks and balances.
The President is empowered to pass ordinances when the circumstances make it necessary. It is passed by the President to deal with emergency situations or unforeseen circumstances. These have the same legal status as that of laws passed by the Parliament. This power helps the government in urgent times. For example, the recent Epidemic Act 1897 (Amendment) Act Ordinance, 2020. Any attack or abetment of violence against healthcare workers was made an offence. This paper explores the nature of ordinance making power, whether it is subject to judicial review, its usage over the years, its limitations and trends in promulgation of ordinances. This paper aims to critically analyse the power of ordinance promulgation granted to the executive by the Constitution.
Ordinance Making Power of the President
The ordinance making power of the President is explained under Article 123. Though India follows the theory of separation of powers and powers and functions are sufficiently differentiated, it is not incorporated in its strictest sense. The ordinance making power can be seen as an overlapping of executive and legislative. Article 123 explains the ordinance making power 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 Ordinance 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 House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble 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.
This allows the President to promulgate ordinances during an emergency when the Parliament is not in session. The President can pass ordinances if one house is not in session. The nature of the ordinances is temporary. These ordinances have the legal force similar to any law passed by the legislation. Similarly, the Governor of an Indian state is empowered to pass laws under Article 213. Article 213 deals with the law making powers of the Governor of a state. These laws can be promulgated only when the legislative assembly is not in session and are temporary in nature. In the cases of states following bicameral form of legislature, the Governor can pass an ordinance if any one house is not in session. According to the Constitution, the ordinance may have a retrospective effect and may be passed to repeal other acts and ordinances. This power, however, cannot be used to amend the Constitution. This granting of legislative power was seen as a necessity during the drafting of the Constitution and the opinion is shared by many other experts and jurists. The ordinance making power of the President was justified by Dr. Ambedkar in the constituent assembly.
“It is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise, what is the executive to do. The executive has got a new situation arisen, which it must deal with. Ex hypothesi it has not got the power to deal with that in the existing code of law. The emergency must be dealt with and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hypothesi , the legislature is not in session. Therefore it seems to me that fundamentally there is no objection to the provisions contained in article 102.”
To this, B. N. Rau observed that:
“The ordinance-making power has been the subject of greater criticism under the present Constitution. It must, however, be pointed out that the circumstances may exist where the immediate promulgation of a law is absolutely necessary and there is no time in which to summon the Union Parliament. . . .The President who is elected by the two Houses of Parliament and who was normally to act on the advice of ministers responsible to Parliament is not at all likely to abuse any ordinance-making power with which he may be invested.”
The article concerning ordinance making power drew inspiration from the previous The Government of India Act, 1935. Another appropriate could not be thought of at that time.
The Government of India Act, 1935 had two provisions dealing with the ordinance making power of the Governor General. According to Section 42 of this act, the Governor General had the power to introduce ordinances when the legislature was not in function. The Governor General could promulgate ordinances on his own or by following the advice of the ministers. The consultation with ministers was mandatory. According to Section 43 of this act, the Governor General could issue ordinances to carry out his functions or under the act which required him to act in his discretion. This can be seen as a parallel legislative power with a lifespan of only six months. The lifespan could be extended with the consent of the Crown. This act was also a source for the ordinance making power provided in the Indian constitution. In India, this provision has been met with mixed response. While some have supported the power citing emergency as a reason, others opposing the provision have reasoned that the power is undemocratic and an encroachment upon the legislative.
The power vested in the executive is not without limitations. The president is empowered to pass legislation only in certain scenarios. He can pass legislations only when the Parliament is not in session. He can pass legislations even if one house is not in session. The President is allowed to legislation only when situation demands immediate action. Another necessary element, according to the Constitution, is that the President should be satisfied as to the circumstances that necessitate action. The legislation thus passed has to be approved within the prescribed time limit of six weeks after the reassembling of the Houses of the Parliament.
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