Ordinance making Power of President

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The President is authorized by the Constitution’s Article 123 to enact ordinances while Parliament is in session. Although they are in the form of transitory laws, these ordinances have the same authority and impact as a Parliamentary act.
The President’s most significant legislative authority is the ability to enact ordinances. He has been given authority to handle unanticipated or pressing issues. But the following four restrictions apply ordinance making power of president:

  1. Only when none of the two Houses of Parliament is in session, or while neither of the two Houses is in session, can he publish an ordinance. Because a legislation must be enacted by both Houses and not just one, an ordinance may also be issued when only one House is in session. A law passed when both Houses are in session is null and void. As a result, the President’s authority to legislate by ordinance is not a complementary power of legislation.
  2. Only when he is confident that the conditions exist that require him to act right away can he make an ordinance. The Supreme Court ruled in the Cooper case that malafide can be used as a defense in court to challenge the President’s satisfaction. This means that the President’s decision to issue an ordinance may be challenged in court on the grounds that the President purposefully prorogued one or both Houses of Parliament in order to promulgate an ordinance on a contentious issue, thereby avoiding a parliamentary vote and undermining the authority of the Parliament. In accordance with the 38th Constitutional Amendment Act of 1975, the President’s satisfaction is conclusive, final, and not subject to judicial scrutiny. However, the 44th Constitutional Amendment Act of 1978 repealed this clause. The President’s satisfaction is therefore defendable on the basis of malfeasance.
  3. His ordinance-making authority overlaps with the Parliament’s legislative authority in every area except duration. There are two effects of this:
    a. Only matters that the Parliament has the authority to legislate may be the subject of an ordinance.
    b. The same constitutional restrictions apply to ordinances as they do to acts of Parliament. Consequently, a law cannot restrict or eliminate any fundamental rights.
  4. Upon the return of Parliament, both Houses of Parliament shall be presented with any ordinances that the President has issued during the break. The ordinance becomes an act if it receives support from both Houses. The ordinance expires six weeks after the reassembly of Parliament. If Parliament does not take any action at all. If both Houses of Parliament vote motions rejecting the ordinance, it could also be revoked even before the required six weeks have passed. The six-week period is measured starting from the latter of two dates if the Houses of Parliament are called to reconvene on different days. In the event that the Parliament does not approve it, an ordinance can have a maximum life of six months and six weeks (six months being the maximum amount of time between the two sessions of the Parliament). The actions taken and finished in accordance with an ordinance before it expires remain entirely legitimate and effective even if it is allowed to expire without being brought before Parliament.

An ordinance may also be revoked at any moment by the President. However, he can only promulgate or revoke an ordinance on the advice of the council of ministers led by the prime minister. His power to make ordinances is not discretionary. An ordinance, like any other piece of law, may be retroactive, or start applying from a previous date. Any law passed by Parliament or another ordinance may be amended or repealed. It may also change or amend a tax law. It cannot, however, be used to change the Constitution.

The President of India has a peculiar ability to enact laws that are not included in the majority of democratic constitutions around the world, including those of the USA and the UK. Dr. B.R. Ambedkar claimed in the Constituent Assembly that the mechanism of issuing an ordinance has been devised to enable the Executive to deal with a situation that may suddenly and immediately arise when the Parliament is not in session. This justifies the President’s ability to make ordinances. It must be made clear that the national emergency envisioned in Article 352 has no required relation to the President’s authority to issue ordinances. Even in the absence of a war, external aggression, or armed insurrection, the President may declare an ordinance.

According to Lok Sabha regulations, whenever a bill to repeal an ordinance is submitted in the House, a statement outlining the reasons why quick legislation by ordinance was necessary must also be brought before the House. No case involving the President’s ordinance promulgation has yet been brought before the Supreme Court.

However, the Supreme Court’s decision in the D.C. Wadhwa case (1987) is extremely pertinent to this situation. In that case, the court emphasized that between 1967 and 1981, the governor of Bihar issued 256 ordinances, all of which were periodically promulgated to maintain their validity for terms ranging from one to fourteen years. The court decided that repeatedly promulgating the same ordinances with the same content without attempting to pass the bills via the assembly would constitute a breach of the Constitution and subject the ordinance to being overturned. It was decided that the state legislature’s legislative power cannot be replaced by the exceptional power of establishing laws through ordinance.

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