The Ordinance Making Power, as enshrined in Article 123 of the Indian Constitution, is a testament to the dynamic nature of governance, allowing for swift legislative action when Parliament is not in session. This constitutional provision empowers both the President and Governors to address urgent legislative needs, ensuring governance continuity in times of exigency.

Constitutional Provisions:

Article 123 of the Indian Constitution grants the President the prerogative to promulgate ordinances during parliamentary hiatuses, empowering the executive to enact laws in exigent circumstances. This provision acts as a lifeline, bridging the temporal gap between parliamentary sessions and safeguarding the nation’s governance fabric.

What is Ordinances:

Ordinances, the legislative instruments wielded by the President, hold the potency of Acts of Parliament but possess a transitory nature. These edicts are harnessed to address pressing legislative exigencies that demand immediate attention, circumventing the delays inherent in convening parliamentary sessions.

1. Legislative Instrument: An ordinance is a legislative instrument issued by the President or Governors when Parliament or the state legislature is not in session, allowing for the enactment of laws without the usual legislative process.
2. Temporary Nature: Ordinances have the force and effect of an Act of Parliament or state legislature but are temporary in nature. They serve as interim measures until the legislature reconvenes and passes permanent legislation on the subject.
3. Addressing Urgent Needs: Ordinances are typically promulgated to address pressing legislative needs or situations requiring immediate action, such as emergencies, crises, or issues that cannot wait for the next parliamentary session.
4. Constitutional Framework: The power to issue ordinances is derived from the Constitution, which grants this authority to the President under Article 123 at the central level and to Governors under Article 213 at the state level.
5. Parliamentary Approval: While ordinances come into immediate effect upon promulgation, they require approval from Parliament within six weeks of reassembly (or state legislature in the case of state ordinances) to attain permanence. Failure to secure approval results in the ordinance lapsing.

Parallels and Disparities: President vs. Governors:

Similarities:

• Executive Authority: Both the President and Governors wield the power to promulgate ordinances.
• Purpose: The objective of both sets of ordinances is to respond swiftly to urgent legislative imperatives during respective legislative recesses.

Divergences:

• Jurisdictional Scope: While the President’s ordinances span matters within Parliament’s legislative purview, Governors’ edicts extend to issues within state legislature’s jurisdiction.
• Approval Mechanism: Presidential ordinances necessitate parliamentary endorsement within six weeks of reassembly, contrasting with state ordinances mandating state legislative approval within the same timeframe.
• Geographical Extent: The President’s ordinance-making authority holds sway over the entire nation, whereas Governors’ jurisdiction remains confined to their respective states.

Judicial Oversight: The Supreme Court’s Imprint:

The apex court’s interventions have sculpted the contours of ordinance powers, delineating the boundaries within which executive authority must operate. Through landmark verdicts, the Court has underscored cardinal principles:

• Prudence in Utilization: Ordinances are to be invoked sparingly and exclusively in scenarios of compelling necessity and urgency.
• Judicial Scrutiny: Courts retain the prerogative to adjudicate the validity of ordinances, striking down those transgressing constitutional bounds or encroaching upon judicial pronouncements.

Prominent Cases:

1. D.C. Wadhwa v. State of Bihar (1987): The Supreme Court underscored the exceptional nature of ordinance powers, cautioning against their indiscriminate utilization.
2. T. Venkata Reddy v. State of Andhra Pradesh (1985): The Court emphasized the inviolability of judicial pronouncements, barring the promulgation of ordinances aimed at subverting established legal precedents.
3. Krishna Kumar Singh v. State of Bihar (2017): Reiterating the judiciary’s sentinel role, the Court underscored the imperative of circumspection in wielding ordinance powers, precluding their invocation as a parallel legislative avenue.

The ordinance powers vested in India’s executive authorities serve as vital conduits for expeditious legislative action, embodying the essence of responsive governance. However, their judicious exercise necessitates adherence to constitutional precepts, meticulous scrutiny, and fidelity to democratic principles. As India forges ahead on its democratic trajectory, the responsible deployment of ordinance powers remains indispensable for upholding the edifice of constitutional governance and ensuring the primacy of the rule of law.

FAQs on Ordinance Powers of the President in India:

1. What is the purpose of ordinance powers granted to the President?

• The ordinance powers enable the President to enact laws during parliamentary recesses to address urgent legislative needs or situations requiring immediate action.

2. How does the President decide when to promulgate an ordinance?

• The President exercises ordinance powers based on the advice of the Council of Ministers, typically when Parliament is not in session, and urgent legislative action is deemed necessary.

3. Are there any limitations on the President’s authority to issue ordinances?

• Yes, the President can only promulgate ordinances on matters within the legislative competence of Parliament. Additionally, ordinances

must be necessitated by circumstances of urgency and necessity. They cannot encroach upon the domain of state legislatures or violate constitutional provisions.

4. How long does an ordinance remain in effect?

• An ordinance remains in effect until it is approved by Parliament within six weeks of reassembling. If Parliament does not approve it within this timeframe, the ordinance lapses.

5. Can ordinances be challenged in court?

• Yes, ordinances can be challenged in court if they are found to be unconstitutional, ultra vires, or beyond the powers conferred by the Constitution. The judiciary retains the authority to review the validity of ordinances.

6. What is the role of the Supreme Court regarding ordinance powers?

• The Supreme Court plays a crucial role in interpreting and ensuring the constitutionality of ordinance powers. It has issued landmark rulings delineating the scope and limitations of executive authority in promulgating ordinances.

7. How do ordinance powers of the President differ from those of Governors?

• While both the President and Governors possess the authority to issue ordinances, there are differences in their jurisdictional scope, approval mechanisms, and geographical extent. The President’s ordinances apply nationwide and require parliamentary approval, whereas Governors’ ordinances are limited to their respective states and require state legislative approval.

8. Can ordinances be misused by the executive?

• There are concerns about the potential misuse of ordinance powers by the executive to bypass parliamentary scrutiny or undermine democratic principles. However, the constitutional framework, judicial oversight, and parliamentary accountability mechanisms aim to prevent such abuses.

9. Are there any notable legal cases related to ordinance powers in India?

• Yes, several landmark legal cases have shaped the discourse around ordinance powers, including D.C. Wadhwa v. State of Bihar, T. Venkata Reddy v. State of Andhra Pradesh, and Krishna Kumar Singh v. State of Bihar. These cases have provided guidance on the responsible exercise of ordinance powers and the limits of executive authority.

Source- Hindustan Times

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