Answer 3

When it is the recess of the Parliament, the President has been conferred with the power to

promulgate the Ordinances, which are akin to the Act passed by the Legislature and have same

force or effect, but they are in temporary in nature. Thus, in a sense it could be said to be most

important legislative power of the Highest Executive i.e. President. The reason behind the

conferment of such power is to meet the exigent or urgent matters or situations when the

Legislature is not in session. Since, he has been vested with such mammoth powers, therefore

there are some restrictions placed upon it owing to the fact that when there is conferment of

power without restrictions, there is tendency of the arbitrariness to creep in. The restrictions that

have been placed are as hereunder:

1. The power of promulgation of the ordinance could only be exercised when either both the

houses of the Parliament are not in session, or either one of them is not in session. The reason

behind the latter argument is law could be passed only when both the houses are in session, and

not only one. Thus, it could be said that when the ordinance has been promulgated when both the

Houses are in session would be void in nature. A fortiori, it could be said that power of President

to promulgate ordinance is not parallel.

2. As has been aforestated that such power could only be exercised when there is exigency or

urgency, thus when he is satisfied that there exists such circumstances which render for him

necessary to take the immediate action, then he could promulgate the ordinances. In the case of

RC Cooper vs. Union of India, 1970, it has been held that the satisfaction upon which the

President has promulgated the ordinance could be questioned in the court of the law. Thus,
situation like wherein the President prorogues the Houses of the Legislature, such that he could

promulgate the ordinance could be questioned in the court of law. By the 38th Constitutional

Amendment, 1975 the satisfaction of the President had been made binding as well as conclusive.

Thus, could not have been questioned in the court of the law, but such has been done away with,

with the passing of the 44th Constitutional Amendment of 1978. Thus, the satisfaction of the

President could be tested on the touchstone of malafide.

3. Since he has been vested with the Legislative powers thus, it could be said that the ordinance

promulgation power of the President is co-extensive with that of the Parliament, but nevertheless

the former one is only for sojourn period.

The co-extensive nature means that the Ordinance could be promulgated on those subjects for

which the Parliament is empowered to make the laws. Also, that there could be imposition of

same constitutional limitations on the ordinance as are placed on any enactment of the

Legislature, implying thereby that there could not be taking away or abridgement of the

fundamental rights by the ordinance. Reliance for this has been placed on the definition of law

under Article 13.

4. Since the ordinance has been promulgated when the both are houses of the Parliament were

not in the session or in recess, therefore, when the both the houses are in session, the ordinance

must be placed before them when the houses reassembles. Whereupon if the ordinance is

approved by both the houses, then in that case it would become the Act, otherwise, if no action is

taken on such ordinance, then in such a case the ordinance would cease to have operation and

would lapse on the expiry of the six weeks from the date on which the Parliament reassembles.

There is also a situation where in such ordinance would cease to have effect prior to six weeks,
in case a resolution has been passed by both the houses of the Parliament disapproving such

ordinance.

There could also be withdrawal of the ordinance by the President itself, but it is worthy to

mention herein that promulgation or withdrawal of the ordinance by the President is not a

discretionary power; rather such power could only be exercised on the advice of the council of

the ministers.

An important aspect about the Ordinance that it could also be in operation from the back date,

implying thereby that like any other legislation there could be retrospective effect of the

Ordinance too. There could be modification or alteration or repeal of any other law or other

ordinance by it, but save herein that Constitution could not be amended by way of that.

It could be said that the power of the promulgation of the ordinance of the President is not usual

or democratic in its sense. It has been said by the BR Ambedkar, in the constituent assembly

(Vol VIII, pg. 213) that such power has been conferred in order to meet the situations that may

arise immediately and suddenly when the Parliament is not in the session.

As per the rules of the Lok Sabha, when the ordinance has been laid down before it for the

introduction, then it also required that the circumstances that existed prior to the promulgation of

the ordinance must also be placed before it.

It could herein be said that since the power of the promulgation of the ordinance is co-extensive

to the power of the legislature, albeit not parallel, such power could not be used to over-ride the

legislative power of the Parliament, and once the ordinance has been promulgated there could

not be any other ordinance for extension of its operation and it must be laid down before the

Parliament. The reliance for this has been placed on the decision of the Apex Court in the case of

the DC Wadhwa vs. State of Bihar, 1987.

ANSWER 2
A) 352 WITHOUT CONSULTATION

The President has been empowered under the Article 352 to declare the emergency when and if

he is satisfied that the country or part thereof has been threatened owing to the war or external

aggression or the armed rebellion. This power could also be exercised by him prior to the actual

happening of the event, if he is satisfied that there is imminent danger. What is an important

aspect herein that on the different grounds the different proclamation of the emergency could be

declared, and reliance for this is placed on the 38th Amendment Act, 1975. As per the Article

352 there must exist some grave emergency prior to the declaration, and such emergency must

emanate either from the war like situation or the external aggression or armed rebellion.

However, such emergency could be proclaimed by the President only when the and after the

receiving the recommendation thereon by the council of the ministers (cabinet). This has been

provided under the clause 3 of the Article 352 of the Constitution that the emergency under the

clause 1 of the said provions could only be declared upon receiving the recommendation from

the cabinet in the writing that there is requirement of such a proclamation.

In the present case, the emergency has been proclaimed by the President without the consultation

of the cabinet or the council of the ministers on the ground that the security of the nation has

been threatened owing to the aggression of the Chinese. It could be said thus that since the

recommendation from the cabinet has not been sought prior to such issuance, therefore such

proclamation could not be deemed as constituently valid. (Albeit the situation has become fait

accompli now). The safeguard of the consultation of the cabinet is also taken care of by the 44th

Amendment Act, 1978.

B) 359 ORDER THAT 20 21 ARE SUSPENDED

There are some effects that ensue the proclamation of the emergency under Article 352 of the

Constitution and such effect could be seen on the fundamental rights guaranteed under the part

III of the Constitution.

As per the Article 359 of the Constitution, post emergency (when is in operation), it could be

declared by the President by way of order that the right to move any court for the enforcement of

the fundamental rights is suspended, but save herein that no order of suspension could be made

in respect Article 20 and 21 of the Constitution i.e. no right to liberty could be curtailed.

Implying thereby that under Article 359 the President could order the suspension of the right of

moving to the court during the National Emergency. Under said provision, the rights are alive

theoretically but there enforcement is moved to the suspended animation. Also, that only those

rights could be suspended on which the order has been made by the President and must be laid

before the Houses of the Parliament for the approval.

The scope of the Article 359 has been restricted or inhibited by the 44th Amendment of the

Constitution, in the year 1978 whereby the under Article 359 the Fundamental rights, or in better

words, the enforcement of the fundamental rights could be suspended, but by way of such

amendment an exception has been carved whereby the enforcement of the Article 20 and 21

could not be suspended.

In the present case, the order has been made by the President on 29th September 2021 declaring

that the right to move any court for the enforcement of fundamental rights namely Article 14, 20

and 21 is suspended. Since, by way of such order the Article 20 and 21 has also been suspended,

which otherwise could not have been done constituently therefore such an order made by the
President under Article 359 clause 1 is not constitutionally competent. And, thus would have no

effect on the enforcement of the Article 20 and 21 of the Constitution.

C) RIGHT TO MOVE TO THE COURT FOR RIGHT TO LIBERTY

While there is proclamation of the emergency all the fundamental rights of the citizen gets

suspended, or in better sense the fundamental rights are alive theoretically on the letter but the

right to enforce such fundamental rights by moving to the courts could be suspended. The Article

19 gets suspended automatically on the proclamation of the emergency, while for the other

fundamental rights; the order is required from the President declaring the suspension. Thus, if the

right has not been mentioned/specified in the order of the President while proclaiming the

emergency, then in such a case right of enforcement in respect of such rights could be exercised.

Thus, to foresee if the right or its enforcement has been suspended or not during the

proclamation of the emergency regard could be had to the rights that have been “specified” under

the order of the President.

The 44th Constitutional Amendment Act, 1978 has not inhibited and restricted the scope for the

curtailment of the fundamental rights, post the ADM Jabalpur vs Shivkant Shula 1976, and such

change has been manifested in the Article 359 of the Constitution, which states that the President

could suspend the fundamental rights, but no suspension of the Article 20 which relates to the

protection in respect of certain offenses, which includes protection against the ex post facto laws

and the double jeopardy, and Article 21 which relates to the right to personal liberty. Apart both

these rights, all the fundamental rights could be curtailed during the emergency, and same has

happened in 1975 National Emergency.

In the present case, on 20th September 2021 the order has been made by the President for the

suspension of the Article 14, 20 and 21 and thereupon the law has been made by the State for the

purpose of the preventive detention: if the authorities are satisfied for such detention, on the

ground of prevention of any action that would be prejudicial to the defense of the State and

Security of the Nation. Since, the President has made the order for the suspension of the right to

move the court for the enforcement of the Article 20 and 21, which he could not have made

owing to the mandate under Article 359 of the Constitution, 1950. Therefore, not only such law

is invalid but the person would have the right to move to the court for the enforcement of the

right to liberty.

In the present case, the police constable had detained the person under the preventive detention

law and now the detenue has approached the High Court under 226 of the Constitution for

issuance of writ of the Habeas Corpus. It could be said that since the order of the President is

invalid therefore, the person would indubitably have the right to move to the court, and the court

would be able to entertain the action for the enforcement of the right to liberty.

D) IF IT WAS PRE-44th AMENDMENT SITUATION

Yes, my answer would have changed if the same scenario was prior to the 44th Amendment 1978

and the proclamation of the emergency would have been different. Prior to the 44th Amendment

the President had the power to declare that the rights to move to the court for the purpose of the

enforcement of the fundamental right remain suspended. Therein, there was no protection against

the curtailment of the Article 20 (protection in respect of certain offenses, including the

protection against the ex post facto laws and the double jeopardy) and the Article 21 (right to

liberty), and thus if any person’s right to liberty would have been abridged or taken away, and it
had been mentioned in the Article 359 Presidential order that during the emergency Article 21

would be suspended then in such a case, the person would not had the right to move to the court

for the enforcement thereof. That would have meant that the rights of the person would just have

been in theory and letter, and there would not have been any application thereof.

Prior to the 44th Amendment, the position on this circumstance has been cleared by the ADM

Jabalpur vs. Shivkant Shhukla, 1976 whereby it has been held by the majority decision that-

During the proclamation of the emergency, and the subsequent suspension of the Right to liberty

i.e. Article 21, the person would not have the right to move to the court for the issuance of the

writ against the preventive detention.

By the majority of the four judges: AN Ray, CJ,, MH Beg, PN Bhagwati and YV Chandrachud,

it has been held that the person would not have any locus standi to move to the court for the

enforcement of the Fundamental rights under Article 226 for the Habeas Corpus in the present

case, for challenging the legality of the detention.

Therein it has been held by the Chief Justice that since the Article 21 is the repository of rights

against the state action, and such right had been suspended by way of the presidential order

under Article 359.

But, it has been held in the minority opinion by the Justice HR Khanna that the Artilce 21 could

not be suspended during the proclamation of the emergency (here we are talking about pre-44th

amendment stage). It was further held that without there being any sanctity of life and liberty,

there would not be any distention between the society governed by laws and lawless society. It

had also been held by him that the right to be not deprived of the life and personal liberty without

there being any authority of the law, is not something that has been created by the Constitution,

rather such right had existed prior to it too. In arguendo, it has been held that even in the absence
of the Right to life and liberty, there is no power in the State to curtail without the authority of

the law.

Thus, going by the position and decision of the Apex Court in the ADM Jabalpur vs. Shivkant

Shukla, 1976, my answer to the part c of this question would have changed if there were same

facts had occurred prior to the 44th Amendment Act, 1978 and the proclamation of the emergency

had been valid. Implying thereby that if the Article 21 had been curtailed prior to the 44th

Amendment Act, 1978 by way of the Article 359 Presidential order declaring that the right of the

person to move the court for the enforcement of right of liberty has been suspended, then such

order would have been valid and High Court could not have entertained the petition.