367(2) of the Constitution” and rejected the “contention that Ordinance is not 'law' within the

meaning of Article 21 of the Constitution.”1

Further the contention made by the petitioner that the procedure established by ordinance is
not the same as the procedure established by law. The court replied that the word
“established” as used in Article 21 means that the procedure prescribed by the law must be
defined with certainty in order that those who are deprived of their fundamental right to life
or liberty must know the precise extent of such deprivation.2 However, the Court failed to
mention that the procedure cannot be “arbitrary, unfair or unreasonable” as declared in the
Maneka Gandhi Case3 but the Court rightfully mentioned that as long as the procedure
established by law is definite and reasonably ascertained, even the short temporary duration
as in the case of an Ordinance is immaterial. But, in this case Gupta J., dissented that the
reliance should not merely be placed on the headings of the Chapter, but it has to be gathered
from the provisions of Article 123 (2) where it is given that the when the Ordinances are said
to have the force and effect of an Act of a Parliament it means that is not really an Act of
Parliament nor it is deemed to be a Act of Parliament.4

He also contended on the basis of the judgment by Patanjali Sastri J., in A.K. Gopalan case,
where he said that the word “established” in Art. 21 mean “some degree of firmness,
permanence and general acceptance…”18 and argued that the Ordinances in this sense don’t
have “permanence” or “firmness” as it is tentative in nature. He declared that an ordinance
has the force and effect as under Article 367 (2) “only over an area where it can validly
operate. An invalid ordinance can have no force or effect and if it is not 'law' in the sense the
word has been used in Article 21.”5
However, taking into consideration the discussion and expressed intention of the framers of
the Constitution regarding the status of an Ordinance regarding the matters of Article 21,6 and
the reasoning given by the majority Judges in the case I cannot agree with the opinion made
by Gupta J. The test as to the “permanence” of a law cannot be seen as a justified ground, and
according to Oxford Dictionary the word “firmness” means “steady and strong; not weak or

1
https://india.lawi.asia/a-k-roy-v-union-of-india-and-anr-4/
2
Supra 22
3
Maneka Gandhi v. Union of India AIR 1978 SC 597; p. 613-14
4
Supra 22
5
https://indiankanoon.org/doc/50294192/
6
https://indiankanoon.org/doc/50294192/
uncertain.”7 The Ordinances are definite and the law made by an ordinance is executed in the
same manner as that of a legislative law passed by the Parliament. The main thing that should
be considered is the test that a law cannot be “arbitrary, unfair or unreasonable.”
Regarding disturbing the basic structure of the Constitution the Court held that Ordinance
making power if extended to matters regarding Article 21 will not destroy the basic structure
of the separation of powers as envisaged by the Constitution, on the grounds that Article 123
(1) is a part of the Constitution as originally enacted and that the Indian Constitution does not
follow the American pattern of a strict separation of powers.8

Whether an ordinance made on the satisfaction of the President is judicially reviewable

by a Court or it can be regarded as a purely political question?
An argument made by the petitioner that as Article 123 puts some precondition on the
President before an ordinance is promulgated and the amendment introduced in Article 123
by the 38th Constitution Amendment Act, 1975, was deleted by the 44th Constitution
Amendment Act, 1978 whether the satisfaction of the President is judicially reviewable by a
Court or it can be regarded as a purely political question. The 38th amendment act introduced
a sub-clause 4 under Article says that the satisfaction of the President mentioned in Clause

7
Oxford Advanced Learner’s Dictionary 458 (4th ed. 1948)
8
Supra note 9