Ordinance Making Power Of The President

Ordinances are similar to laws, except they are proclaimed by the President of India when the Lok Sabha and Rajya Sabha, or any of them, are not in session. The approval of the Union Cabinet is required before an ordinance may be passed. Immediate legislative action can be achieved with the use of ordinances.

In simpler terms promulgate ordinance meaning refers to, any law proclaimed by the President when the Indian parliament is not in session is known as an ordinance. An ordinance must be adopted by Parliament within six weeks of its introduction in order to be valid. Parliament must convene within six weeks of the Ordinance's enactment. The ordinance making power of the president are outlined in Article 123 of the Constitution. When either of the Houses of Parliament is not in session, the President has some law-making powers that allow him to proclaim ordinances. This makes enacting laws in parliament impossible.

An Ordinance can be issued on any subject over which the Parliament has legislative authority. In this way, the president's powers are constrained in the same way as Parliament's are constrained. In this article, the focus is mainly on the promulgate ordinance meaning and ordinance by the president. The article also answers questions like when an ordinance can be issued by the president.

Article 123: Power of President to Promulgate Ordinance

Article 123 is known as the presidential ordinance article of the Indian constitution. It is this article of the Indian constitution that defines the promulgate ordinance meaning and the ordinance power of the president. There are certain key points about the president ordinance article that is summarized below. 

• If the President believes that circumstances exist that necessitate him to take immediate action at any time other than while both Houses of Parliament are in session, he may publish such Ordinances as the circumstances appear to warrant.

• An Ordinance is promulgated under this article has the same force and effect as an Act of Parliament, but there is every such ordinance has certain prerequisites 

(a) shall be presented before both Houses of Parliament and shall cease to operate six weeks after the reassembly of Parliament, or, if resolutions rejecting it are passed by both Houses before the end of that period, upon the passing of the second of those resolutions; and

(b) may be revoked by the President at any time. This indirectly means that for the purposes of this clause, if the Houses of Parliament are called to reassemble on different days, the six-week term begins on the later of those dates.

• If and to the extent that an Ordinance under this article makes any provision that Parliament would not be competent to pass under this Constitution, it shall be null and void.

Limitations of the Ordinance Making Power of the President

As we have studied when can ordinance be issued by the president, we must now look into certain limitations that are present in the ordinance making power of the president which are summarised below. 

• When neither of the two Houses of Parliament is in session, the President then only can promulgate an ordinance.

• President cannot issue an Ordinance unless he is certain that there are conditions that necessitate taking "urgent action."

• Ordinances must be authorised by Parliament within six weeks following the re-convening, otherwise, they will be nullified. They would likewise be rendered ineffective if both Houses voted resolutions opposing the Ordinance.

• Once both houses of Parliament are in session, an ordinance will expire after 6 weeks.

• An ordinance cannot be used to make a constitutional change (amendments).

• The Governor of a state's power to issue ordinances is covered under Article 213 of the Constitution. However, in three circumstances where the President's consent would have been required to enact a similar bill, the Governor cannot issue an Ordinance without instructions from the President.

• The President, as with all other topics, acts on the recommendation of the Council of Ministers when enacting Ordinances. While the Ordinance is issued in the President's name and according to his constitutional requirements, it is actually issued at the suggestion of the Council of Ministers.

• Ordinance-making authority with the President (in actuality Council Of Ministers) is an example of subordinate legislation, in which the true lawmaking authority, the parliament, delegates its power to the executive when Parliament is in recess.

• Another limitation studied in the promulgate ordinance meaning is seen in the following case where while examining the validity of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President's power to issue ordinances is not beyond the reach of judicial review.

• The Supreme Court declared in DC Wadhwa vs. the State of Bihar (1987) that courts could overturn re-promulgated ordinances.

The above mentioned were the key limitations of the ordinance power of the president, these were important to understand the complete scope of the ordinance.

Key Features of the Promulgate Ordinance

As we have understood the promulgate ordinance meaning and the limitations we can now look into some of the key features of the promulgate ordinance which are summarized below. 

• When Parliament is in session, an ordinance is declared null and void.

• An ordinance can be retroactive, meaning that it can be enacted prior to its approval.

• Acts, laws, and events that occurred under the ordinance are still in effect until it expires.

• The Indian President is one of the few international leaders who have the authority to issue ordinances. The power to enact ordinances cannot be viewed as a substitute for the President's legislative authority.

• In the event that the president's intentions are proven to be false, the president's power to enact an ordinance is under the judiciary actions.

• Ordinances can only be passed on subjects where the Indian Parliament has the authority to pass legislation. Citizens' fundamental rights, as guaranteed by the Indian Constitution, cannot be taken away by ordinance.

• If both houses vote a resolution condemning the ordinance, it will be declared null and void.

Example of Challenges of Ordinance Power of the President 

1. The Supreme Court considered the legality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 in RC Cooper vs. Union of India in 1970. 14 of India's top commercial banks were to be nationalised under the ordinance. It was therefore decided that the Indian President's decision may be challenged because no "urgent action" was required on the problem, and the Ordinance was solely passed to avoid any legislative debate. 

2. In AK Roy vs. Union of India, the Court stated that the President's power to make ordinances is not beyond judicial review while considering the legitimacy of the National Security Ordinance, 1980, which aimed to provide for preventative detention in certain situations (1982).

3. In T Venkata Reddy vs. State of Andhra Pradesh (1985), the Supreme Court declared that the intentions behind the exercise of this power, like those behind laws passed by the Parliament and state legislatures, cannot be questioned.

Following these events, the 38th Constitutional Amendment Act added a new clause (4) to Article 123, declaring that the President's satisfaction in promulgating an Ordinance was final and could not be challenged in any court on any grounds.

Ordinance Powers of Governor

Apart from the president of India, there are some ordinance making powers that rely on the Governor of the country. These powers are summarized below. 

• When the Legislative Assembly is not in session in a unicameral legislature, or when both the Legislative Assembly and the Council are not in session in a bicameral legislature, the Governor can promulgate an ordinance.

• Only those issues on which the state legislature can establish laws can be addressed by the governor through an ordinance.

• Governor ordinances have the same policy impact as state legislation. If his ordinance legislates on issues over which the state government has no authority, it is null and void.

• He can revoke the ordinance he introduced at any moment.

• The ability of the governor to enact ordinances is not a discretionary one. The advice of the Council of Ministers (led by CM) is required.

• In the following three instances, the President's instructions are required:

1. If a law having the same provisions had required the President's prior approval before being introduced in the state assembly.

2. If he had thought it necessary to keep a bill with the identical provisions on the table for the President's consideration.

3. If a state legislature legislation containing the identical provisions had been declared unlawful without the President's approval.

Facts about Ordinance over Recent Years

Mentioned below are some interesting facts about the ordinance in recent years. 

• The highest number of Ordinances were issued in 1993, and the number of Ordinances promulgated has decreased since then. 

• The number of Ordinances issued in the last year has increased.

• In the last two years, the Indian government has re-promulgated four ordinances. 

• The 2014 Coal Mines (Special Provisions) Ordinance has been implemented twice.

• Three times the Land Acquisition Ordinance has been put into effect. It was later revoked. 

• The Negotiable Instruments (Amendment) Ordinance of 2015 was passed twice, and the Enemy Property Ordinance was passed for the fourth time.

In conclusion of the article, we have developed an understanding that the President of India has a one-of-a-kind ability to issue ordinances. Article 123 of the constitution mentions this power.