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Ordinance making power and role of judiciary

Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament. This technique of issuing an ordinance has been devised with a view to enabling the executive to meet any unforeseen or urgent situation arising in the Country when Parliament is not in session, and which it cannot deal with under the ordinary law.

The following limitations exist with regard to the Ordinance making power of the executive:

i. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
ii. Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
iii. Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.

Comparison between Regular Legislation and an Ordinance

• An Ordinance made by the President is not an executive, but a legislative act. Hence, it is a ‘law’ within the meaning of Constitution. The power of the President to legislate by Ordinance during recess of the Union Parliament is co-extensive with the legislative power of the Parliament itself. An Ordinance, therefore, cannot be promulgated with respect to a subject which is beyond the legislative competence of Parliament.
• The initiative for both a regular legislation and an Ordinance comes from the Executive. In case of the former, the Legislature passes legislation on a current basis, while in the later, the legislative sanction is post facto.
• Unlike the passing of a regular Bill, there is no scope for detailed discussion and arriving at consensus at the time of promulgation of Ordinances.
• Like money bills and finance bills, there can be Ordinance on fiscal matters as well.
• Like an Act of Parliament, an Ordinance is subject to judicial review, on grounds of unconstitutionality. It has also been held by various courts that just as the propriety of the exercise of legislative power or the motives of the Legislature in passing a law cannot be questioned in a court of law, similar is the case with Ordinance passed under Article 123. The only function of the Court is to declare it invalid, if it transgresses the constitutional limits of the power.
• Whereas the life of an Act made by Parliament would depend upon the provision in the Act, the life of an Ordinance can in no case extend beyond six weeks from the date of reassembly of Parliament. An Ordinance may be withdrawn by the President at any time before it ceases to have effect, but an Act of Parliament cannot be withdrawn; it can only be repealed by another Act of Parliament.
• An Ordinance is equally subject to the limitations and constraints which are put upon the Parliament by the Constitution, such as, abridgement of Fundamental Rights. There are no additional restraints upon the Ordinance making power of the President.
The President may issue an Ordinance to enforce the provisions of a Bill introduced in, and pending before a House; or to enforce the provisions of a Bill already passed by one House but not yet passed by the other House. Ordinance can also be on a completely new matter to be replaced subsequently by a Bill to be brought before the House or for a purpose not requiring permanent legislation.

Role of judiciary

The Ordinance making power of the President is in reality a power vested with the Union Cabinet or the Council of Ministers. Moreover, the satisfaction of the President regarding the existence of circumstances that render it necessary for him to take immediate action is a subjective matter which cannot be probed or questioned in a court of law; and the precise nature of the action that he may decide to take in such circumstances is also left to his discretion and cannot be challenged.

However, under Dr. D.C. Wadhwa & others v. State of Bihar Supreme Court has made following observations:

• The power to promulgate an Ordinance is an emergency power which may be used where immediate action may be necessary at a time when the legislature is not in session. It is contrary to all democratic norms that the Executive should have the power to make a law; hence such emergency power must, of necessity, be limited in point of time.
• A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the authority to do an act, to avoid that limitation by resorting to a subterfuge would be a fraud on the constitutional provision.
• While the satisfaction of the President as to the existence of circumstances necessitating immediate action by issuing an Ordinance cannot be examined by Court, it is competent for the Court to inquire whether he has exceeded the limits imposed by the Constitution. He would be usurping the function of the Legislature if he, in disregard of the constitutional limitations, goes on re-promulgating the same Ordinance successively, for years together, without bringing it before the legislature.
• Though, in general the motive behind issuing an Ordinance cannot be questioned, the Court cannot allow it to be ‘perverted for political ends’.