What is ordinance making power of the President?

Q.  Which of the following is true regarding ordinance making power of the President?

1) Article 123 deals with ordinance making power of the President.
2) Ordinance making power of the President is discretionary.
3) The maximum life of an ordinance can be six months and six weeks.

- Published on 28 Feb 17

a. 1, 2
b. 1, 3
c. 2, 3
d. All of the above

ANSWER: 1, 3
  • Article 123 of the Constitution says that the President can promulgate ordinances during the recess of Parliament.

  • These promulgated ordinances have the same force and effect as an act of Parliament.

  • However, they essentially are temporary laws.

  • This is an important legislative power of the President vested in him to deal with unforeseen or urgent matters.

  • But, this power is subject to the below mentioned limitations -

    1. Ordinance can be promulgated only when both the Houses of Parliament are not in session. Ordinances can also be promulgated when either of the two Houses of Parliament is not in session.

    2. An ordinance made when both the Houses are in session is void.

    3. This shows that power of President to make laws by ordinance is not a parallel power of legislation.

    4. He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action by issuing ordinances.

    5. In 1970, the Supreme Court held that the President’s satisfaction is subject to judicial review on the ground of malafide.

    6. 38th Constitutional Amendment Act of 1975 made the President’s satisfaction final and conclusive and beyond judicial review.

    7. But, this provision was deleted by the 44th Constitutional Amendment Act of 1978.

    8. The President’s satisfaction is justiciable on the ground of malafide.

    9. An ordinance can be issued only on those subjects on which the Parliament can make laws (Union and Concurrent lists).

    10. The ordinance is subject to the same constitutional limitation as an act of Parliament.

    11. An ordinance cannot abridge or take away any of the fundamental rights.

    12. Every ordinance issued by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles.

    13. If the ordinance is approved by both the Houses, it becomes an act.

    14. If Parliament takes no action at all, the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament.

    15. The ordinance may also cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament pass resolutions disapproving it.

    16. If the Houses of Parliament reassemble on different dates, the period of six weeks is calculated from the later of those dates.

    17. The maximum life of an ordinance can be six months and six weeks, in case of non-approval by the Parliament as six months being the maximum gap between the two sessions of Parliament.

    18. If an ordinance is allowed to lapse without being placed before Parliament, then the acts done and completed under it, before it ceases to operate, remain valid.

  • The President can also withdraw an ordinance at any time.

  • President’s power of ordinance-making is not a discretionary power.

  • He can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by PM.

  • An ordinance like any other legislation, can be retrospective, that is, it may come into force from a back date.

  • It may modify or repeal any act of Parliament including tax laws or another ordinance.

  • But, it cannot amend the Constitution.

  • The ordinance-making power not found in most of the democratic Constitutions of the world including that of USA, and UK.

  • The Supreme Court ruled that successive repromulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to violation of the Constitution and the ordinance so repromulgated is liable to be struck down.

  • It held that this exceptional power of ordinance cannot be used as a substitute for the legislative power of the state legislature.

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