QUICK READ – ORDINANCE MAKING POWER OF THE PRESIDENT.

Introduction: Under the concept of separation of powers, (viz. Executive, Legislature, and Judiciary) the
Constitution of India, has bestowed the executive power of the union with the President who shall act on
the aid and advice of the council of ministers, whereas the legislative power is vested with the central
legislature i.e. the parliament; and the courts are established to interpret the laws.

But there are certain overlaps in this division or separation of power. President has some legislative and
judicial functions (viz. Ordinance making, and granting pardon) and legislature can delegate some of its
functions to executive in the form of a subordinate legislation (Eg: As in the case of Insolvency and
Bankruptcy Code, 2016, IBBI has been delegated certain legislative functions)

Constitutional Provision: Article 123 of the Constitution of India grants the President power to promulgate
ordinances when either of the two Houses of Parliament is not in session and an immediate action is
required.

The following limitations exist with regard to the Ordinance making power of the President:

i. Legislature is not in session: The President can only promulgate an Ordinance when either of
the two Houses of Parliament is not in session.

ii. Immediate action is required: The President cannot promulgate an Ordinance unless he is
satisfied that there are circumstances that require taking ‘immediate action’.

iii. Parliamentary approval during session: Ordinance must be approved by both the houses of
parliament within six weeks of reassembling or it shall cease to operate. They will also cease
to operate in case resolutions disapproving the Ordinance are passed by both the Houses.

Note: President under Article 85(2)(a) of the Constitution may prorogue the Houses or either House.
Prorogation means the termination of a session of the House. The President can also prorogue the House
while in session.

SUPREME COURT’S VIEW:

The role of the Judiciary in interpreting this extra-ordinary power of the executive has been a highly
contentious one. Whether Courts can intervene on the ground of mala fides or fraud on the Constitution, if
this provision is used in a manner that defeats Parliamentary democracy? a court of law cannot inquire
into the motive behind or the propriety of promulgating an Ordinance. Its only function is to declare
it invalid, if it transgresses the constitutional limits of legislative power. The Court should also intervene,
if the President (or Governor), instead of transgressing the limits directly, resorts to a device or practice
which indirectly violates the limits of the power. For example, re-promulgating Ordinances without placing
them before the Legislature or getting them replaced by Acts of Parliament.1

1
The Barium Chemicals Ltd. v. The Company Law Board and Others AIR 1967 SC 295; Rustom Cowasjee Cooper v.
Union of India AIR 1970 SC 564; The State of Rajasthan v. The Union of India AIR 1977 SC 1361; AK Roy v. The
Union of India AIR 1982 SC 710; State of Punjab v. Satya Pal AIR 1969 SC 903.