Various Issues around Ordinance Making power of President of India

Article 123 of the Indian constitution empowers the President to promulgate ordinances. This mechanism 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 (either one or both houses). Following points are important about ordinances:

If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—

  • Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolution disapproving it are passed by both Houses, upon the passing of the second of those resolutions. As maximum gap between two session of a house can be 6 months therefore maximum life of a ordinance can be 6 months and 6 weeks; and
  • May be withdrawn at any time by the President.

Explanation:—where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void. In other words it can be issued only on those subjects on which parliament has jurisdiction.

The president can also withdraw ordinance at any time. But this power of President regarding ordinances is not discretionary; he has to act on the aid and advice of council of ministers. This ordinances cannot be issued amend the constitution.

Statement explaining about the circumstances that necessitated the issuance of ordinance is required to be placed before the house; this requirement is mentioned under the rules of Lok Sabha.

DC Wadhwa case (1987) judgement by Supreme Court dealt with the issue of ordinance. The governor of Bihar issued 256 ordinances between 1967 and 1981 and life of these ordinances ranged between 1 to 14 years. Court held that repromulgation of ordinances with the same text, without giving any chance to house to pass it, would amount to violation of the constitution, thus these ordinances can be struck down. Finally court held that power given to president to deal with extraordinary situation can be used as a substitute for the legislative power of the state assembly. Following graph shows the number of ordinances issued by government after 1990:

Recent ordinances issued by the Modi government are listed in the below graphics:

Issues about ordinance making

Constitution has provided separation of power between legislature and executive. Through ordinance route executive creates instability about this separation.

Satisfaction of President

Ordinance can be promulgated only when he is satisfied that circumstances exist for the same. In Cooper case (1970) Supreme Court held that his satisfaction can questioned on the ground of malafide. In other words his satisfaction can be questioned on the ground that he has deliberately prorogued the parliament to bypass the legislative route on a controversial subject.

Recent remarks by President Dr. Pranab Mukherjee ‘‘ a noisy minority cannot be allowed to gag a patient majority”, clearly shows the deadlock created due to adamant behaviour of opposition parties. Constructive debates in parliament have been replaced by intentional deadlocks created by opposition parties.

Thus opposition party needs to play a constructive role in the house of the parliament. Number of days the Members of Parliament meet, has been reduced drastically to allow debates to take place on controversial issues. Therefore number of days parliament houses meet should be increased. So giving space to opposition party by the ruling party and increasing the number of days members of parliament meet, can solve the issue of bypassing the legislature and strengthen the Indian democracy.