CONSTITUTIONAL Akshat Tiwari – B.Sc. LL.B (Hons.

)
20BSLN017
LAW ASSIGNMENT
Year: II Semester: 4

ORDINANCE MAKING POWER OF THE PRESIDENT

The President, or rather, the Central Executive, has the power to issue ordinances and
promulgate laws for a transient period of time. This legislative power is conferred to the
President by Article 123 of the Constitution of India, which reads as:

123. Power of President to promulgate Ordinances during recess of Parliament

1.  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 Ordinance as the circumstances appear to him to
require
2. An Ordinance promulgated under this article shall have the same force and effect as an
Act of Parliament, but every such Ordinance
a. shall be laid before both House of Parliament and shall cease to operate at the
expiration of six weeks from the reassemble of Parliament, or, if before the
expiration of that period resolutions disapproving it are passed by both Houses,
upon the passing of the second of those resolutions; and
b. may be withdrawn at any time by the President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
3. 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 1

A bare reading of the Article purports that an Ordinance can only be issued if and only if either
any House of Parliament is not in Session, or it appears to the President that it is necessary for
him to take immediate action without delaying to wait for the assembly of any of the House.
However, any law made under the title of Ordinance remains in force for a period of 42 days,
during which once the Parliament is reconvened, it is to be approved by both Houses of

1
The Constitution of India [India], 26 January 1950, Art. 123
Parliament in order to become a law. Thus, the Parliament is required to sit within 6 weeks from
when Ordinance was introduced.
This can also be construed that any Ordinance passed while both the Houses were in session will
stand void and any act done and completed before the lapse of an Ordinance, however, remain
fully active.
Certain essentials to be borne in mind regarding Ordinances are mentioned as follows:
 Ordinances can be introduced only on those subjects on which the Indian Parliament can
make laws.
 Ordinances cannot take away any rights of citizens that are guaranteed by the
Fundamental Rights of the Indian Constitution.
 Ordinance ceases to exist if parliament takes no action within six weeks from its
reassembly
 Ordinance also stands void if both the houses pass a resolution disapproving the
ordinance

In SKG Sugar Ltd v State of Bihar2, the Supreme Court explained the Governor’s power
(analogous to President’s power under Art 123) to pass an ordinance. It was pronounced that
“the necessity of promulgating an ordinance is a matter purely of subjective satisfaction of the
Governor (or President) and he is the sole judge for the same.” It was held in this case that
satisfaction of the president is not a justiciable matter and cannot be reviewed in any Court of
Law on the ground of error of judgement.

The question of Judicial Review of the President’s satisfaction for promulgating an ordinance
has been in controversy due to the fact that any law made by the Legislature may be questioned
on constitutionality, but no objection is made on the “applicability-of-mind” by the Legislators
regarding the necessity of any law made. While issuing an ordinance, the President partially
morphs in the Legislative domain to promulgate ordinances, which are not very different than
Laws made by the Legislature, though also not same in some respects. Thus, the question itself is
of questionable character.

The 38th Constitutional Amendment Act, 1975 added the 4 th Clause in Article 123, expressly
mentioning the non-justiciability of the satisfaction of the President to issue an ordinance. But in

2
AIR 1950 FC 59
spite of Article 123(4), the Supreme Court in State of Rajasthan v UOI 3 was of the opinion that
the presidential satisfaction could still be questioned on grounds of mala fides.

The 44th Constitutional Amendment Act, 1978, however, deleted the 4th Clause and restored the
status quo, and the question for judicial review of the satisfaction of president was opened yet
again. In A.K. Roy v UOI4, the question for the judicial review of the president’s satisfaction of
the to promulgate the NATIONAL SECURITY ORDINANCE, 1980 was raised. The question
was, nevertheless, left open for discussion and no conclusion was made regarding the same.
However, the Court said that it was arguable that judicial review is not totally excluded for the
matter of President’s satisfaction to issue ordinance.

The Supreme Court’s ruling in S.R. Bommai v UOI5 relating to the challenge of President’s
satisfaction for declaring an emergency on mala fide grounds, to which the Supreme Court
agreed, holding that a proclamation by President under art 356 can be challenged on grounds of
mala fides. Thus, the argument in the previous case was strengthened that the satisfaction of the
President to promulgate an ordinance must also be open to challenge for mala fides.

Another face of the coin in this respect is that while a law made by the Legislature is tested on
the anvil of critique from the Houses of Parliament, and is made by elected representatives, while
an ordinance is purely an executive decision, not open in any respect and subject to no review.

Various other cases have tested the question of review of the satisfaction of the President for this
matter, with dissenting as well as assenting opinions, keeping the question still debatable.

ORDINANCES WHICH MARKED HISTORY

1. Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969:

 A question on this ordinance gave rise to the well-known Bank Nationalization case,
or RC Cooper v UOI6 By this ordinance, the Union nationalized a number of private
banks.
 Argument: The ordinance was invalid as the condition requisite for the exercise of
power under art. 123 by President was not fulfilled.
 And that art. 123 does not make the president as the final arbiter of the conditions on
which the power to promulgate an ordinance may be exercised.
3
AIR 1988 SC 1361
4
AIR 1982 SC 710
5
AIR 1994 SC 1918
6
AIR 1970 SC 564, 587: (1970) 1 SCC 248
  Counter-argument: That the condition requisite for promulgation of Ordinances is
purely subjective and Government is under no obligation to disclose the reasoning
behind the same.
 The Supreme Court, however, left the question open to discussion, marking it to have
become an ‘academic’ question
2. National Security Ordinance, 1980:
 This Ordinance, which later became an Act, empowered the Central and State
Governments to detain a person to prevent him/her from acting in any manner
prejudicial to the security of India, the relations of India with foreign countries, the
maintenance of public order, or the maintenance of supplies and services essential to
the community it is necessary so to do.
 This Ordinance was challenged in the Supreme Court in the famous case of A.K. Roy
v UOI7 on the same ground, demanding a reasoning behind the satisfaction of
President for promulgating the said Ordinance.
 Again, the court left the question open whether the satisfaction of President for the
purpose of Article 123(1) is justiciable or not. However, the Court did say that this
power cannot altogether be kept at bay from Judicial Review and the question of
satisfaction cannot be considered wholly political.
 But since, the Ordinance in question was replaced by an Act of Parliament, the Court
did not find any more reason to scrutinize the case further and decide upon the
satisfaction of the President.
3. Maintenance of Internal Security Act, 1971:
 The Act was enacted on July 2, 1971, and replaced the previous ordinance, the
"Maintenance of Internal Security Ordinance" promulgated by the President of India
on May 7, 1971. The Act was based on the Preventive Detention Act of 1950 (PDA),
enacted for a period of a year, before it was extended until December 31, 1969.8
 The Maintenance of Internal Security Act (MISA) was passed by the Indian
parliament in 1971 which conferred the administration of Prime Minister (Indira
Gandhi) and Indian law enforcement agencies very wide powers.
 These powers ranged from indefinite preventive detention of individuals to search-
and-seizure of property without warrants, and wiretapping, for the quelling of civil and

7
AIR 1982 SC 710
8
Source: https://en.wikipedia.org/wiki/Maintenance_of_Internal_Security_Act#History
 political disorder in India, as well as countering foreign-inspired sabotage, terrorism,
subterfuge and threats to national security.
 The law was amended several times during the subsequently declared national
emergency (1975–1977) and used for quelling political dissent.
 Various eminent political leaders were detained under this Act, including Atal Bihari
Vajpayee, Chandra Shekhar, M.K Stalin, Jai Krishna Gupta (the longest MISA
detainee), Lal Krishna Advani, Mulayam Singh Yadav, Lalu Prasad Yadav, M
Karunanidhi, Devi Lal, and counting.
4. Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA)
 “TADA” was an Anti-terrorism law, enforced by the Parliament of India under the
backdrop of the Punjab Insurgency9. The act had a Sunset Provision 10
by which it will
cease to have effect after 2 years of enactment.
 As the Parliament was not in session, its life could not be extended further. Thus, the
provisions were kept alive by passing an ORDINANCE, which was later passed by
both the Houses of Parliament within 6 weeks of promulgation, to become an Act.
 The Act was a controversial one due to certain concerning provisions which were
highly violative of Human Rights, and were not condoned for the same.

9
The Insurgency in Punjab, from the mid-1980s to the mid-1990s, was an armed campaign by the Sikh militant
nationalist Khalistan movement.[16] In the 1980s, the movement had evolved into a secessionist movement after the
perceived indifference of the Indian state in regards to mutual negotiations. Source:
https://en.wikipedia.org/wiki/Insurgency_in_Punjab
10
In public policy, a sunset provision or sunset clause is a measure within a statute, regulation or other law that
provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to
extend the law. Most laws do not have sunset clauses and therefore remain in force indefinitely, except under
systems in which desuetude applies.