The Hindu Editorial Analysis- 26th May 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

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On May 19, 2023, the President of India exercised legislative power under Article 123 of the Constitution, during the period Parliament was in recess, to promulgate “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023” (Ordinance). The ordinance negates a Constitution Bench judgment of the Supreme Court of India, which was delivered on May 11, that brought “services” under the Government of National Capital Territory of Delhi (NCTD).

Ordinance Making Power Of The President

• Article 123 of the Indian Constitution grants the President of India considerable law-making powers, including the authority to promulgate ordinances while neither of the two Houses of Parliament is in session, making it impossible for a single House to adopt and implement legislation.
• Ordinances were incorporated into the Indian Constitution by the Government of India Act, 1935, which granted the Governor General the authority to publish Ordinances.
• An ordinance enacted when both chambers are in session is null and invalid.
• Approval: The ordinance must be approved by the Parliament within six weeks after its reassembly.
• Withdrawal: An ordinance may also be withdrawn by the President at any time.
• Not a Discretionary power: However, his ordinance-making authority is not discretionary, and he can promulgate or withdraw an ordinance only on the suggestion of the prime minister-led council of ministers.
• An ordinance, like any other piece of legislation, can be retroactive, meaning it can take effect from a previous date.
• It has the authority to amend or revoke any act of Parliament or other decree. It can also change or amend a tax legislation. It cannot, however, be used to modify the Constitution.

Limitations to the Ordinance Making Power of the President

• When legislature is not in session: Only when either of the houses of the Parliament is not in session then the President can only promulgate Ordinance.
  • An ordinance passed when both Houses are in session is null and invalid.
  • Thus, the President's capacity to legislate through ordinance is not a parallel legislative power.
• Coextensive as regards all with the law-making powers of the Parliament: His ordinance-making authority is coextensive with the Parliament's law-making authority in all aspects except duration. This has two implications:
  • An ordinance may only be promulgated on issues over which the Parliament has legislative authority.
  • An ordinance is subject to the same constitutional constraints as a Parliamentary act. As a result, an ordinance cannot limit or eliminate any of the essential rights.
• Immediate action is needed: The President, although vested with the power to issue Ordinance, cannot do the same unless he is convinced that there are circumstances that require immediate action.
  • President to issue an ordinance can be questioned in a court
• Must be laid before the houses: Every ordinance issued by the President during the Parliamentary recess must be brought before both Houses of Parliament when they reconvene.
  • If both Houses adopt the ordinance, it becomes an act. If Parliament does not take any action, the ordinance expires six weeks after the reassembly of Parliament.
  • The ordinance may potentially be repealed sooner than the six-week period if both Houses of Parliament vote motions against it.

Ordinance making power of the President - Judicial Review

• The 38th Amendment Act added a new Clause (4) to Article 123, which states that the President's satisfaction with the issuance of the ordinance is final and cannot be appealed to the court for any reason.
• However, the 44th amendment to the Indian Constitution cancelled it and made the President’s satisfaction subject to judicial review, stating that the president's powers could be challenged in court of law, if it is based on bad faith, corrupt motives, or has any malaise of intent.
• He can make an ordinance only when he is satisfied that the circumstances make it necessary for him to take immediate action.
• In Cooper case, (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court.
• Thus, the President’s satisfaction is justiciable on the ground of malafide. Further in S.R. Bommai v. Union of India, the scope of Judicial Review was expanded and any action by the President taken without the relevant materials, would be considered to be in bad faith.

What Is The Difference Between Ordinance Making Power Of President And Governor?

Judicial safeguards for the ordinance

• In DC Wadhwa vs. the State of Bihar (1987), it is argued that the executive's legislative power to issue ordinance should be used in exceptional circumstances and should not replace the law making power of the legislature.
• In Krishna Kumar Singh v. State of Bihar, Supreme Court held that the power to issue ordinances is not absolute, but is conditional on the satisfaction of the existence of circumstances to take immediate action."

Recent Ordinance Promulgated By The President

The Epidemic Diseases (Amendment) Ordinance 2020

• On 22 April 2020, the Government of India declared the proclamation of an Ordinance, 'The Epidemic Diseases (Amendment) Ordinance 2020', to amend the act, adding arrangements to punish those assaulting doctors or health labourers.
• The bill was presented by the Minister of Health and Family Affairs, Harsh Vardhan. The Rajya Sabha approved the bill on 19 September 2020 and the Lok Sabha on 21 September 2020.

Central farm laws

• The Central farm laws which met with inescapable protest were at first brought through the Ordinance course.
• The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, and the Ordinance to revise The Essential Commodities Act were brought in June 2020. Every one of the three Ordinances were replaced by laws in parliament during its monsoon session last year.

Ordinance Making Power Of The President - Historical Background

• Indian Council Act 1861 empowers the Governor-General to promulgate ordinance without the council’s concurrence during emergencies.
• From the Government of India Act 1935, Ordinances were included in the Constitution of India, which gave the authority to the Governor General to promulgate Ordinances.
• Section 42 and 43 of this act mainly deal with Ordinance making power of the Governor General which states that “if there are circumstances that compel him to take immediate action”, only he can exercise this power.
• There was a lot of discussion and debate regarding the Ordinance making power, some members of the Constituent Assembly stressed that this power of the president is contrary to constitutional morality and is of extraordinary nature.
• This method was created to allow the executive to deal with a situation that can occur unexpectedly and without warning when Parliament is not in session (either one or both houses).
• Experts argue that it should be left as a provision, that it should only be used in an emergency.

Conclusion

In most circumstances, the power to make ordinances is a contentious and debatable matter. It attempts to upset the balance of executive and legislative powers by introducing arbitrariness into the Constitutional System and undermining the rule of law. When an executive body exercises such ordinance-making authority, it displays disdain for the legislative.