DEPARTMENT OF LAW

SESSIONAL EXAM (C. A.) – MARCH – 2021

(HELD IN DEC., 2021)

SUBMITTED BY :- PRASHANT MAHAWAR

CLASS :– LL.M. (Gen.)
SEM :- II
SUBJECT :– Paper II (LL.M.-2012) – Constitutional Law
of India : New Challanges – II
ROLL NO. :- 34
Question 1 : Explain the provision dealing with ad-hoc judges of Supreme Court.

Answer : Article 224A of the Constitution of India authorizes the Chief Justice of the Supreme
Court, with the prior approval of the President, to request a former High Court judge to act as a
Judge of the Supreme Court to hear cases. This arrangement has not been repeatedly called into
account in the history of the Indian judiciary.

The Chief Justice of a High Court may start the procedure of recommending a name if:

 The number of vacancies is more than 20 % of the sanctioned strength.

 Cases in a particular class are pending for over five years.
 More than 10 % of pending cases are over five years old.
 Percentage of the rate of disposal is beneath the institution of the cases either in a
particular subject matter or in the court.
 The Chief Justice should set up a panel of judges after personal interaction with the
concerned judge to take their consent. The appointments have to follow the procedure
given in the Memorandum of Procedure for appointment of judges.

Procedure of Appointment

 Article 224A of the Constitution of India provides that the Chief Justice of the Supreme
Court may at any time, with the prior approval of the President of India, request a person
who has been in the office of Judge of that court or any other High Court to act as
Judge of the Supreme Court of that State.
Whenever the need arises, the Chief Justice of India after obtaining the consent of the
person concerned will inform the name of the retired Judge and the period during which
he or she will be required to sit and act as a High Court Judge to the CM of the State.
 The Chief Minister will forward his recommendation to the Union Minister of Law and
Justice after consultation with the Governor.
 The Minister of Justice of the Union Government then contacted the Chief Justice of
India according to the procedure provided.
 On receiving the advice of Chief Justice of India, it would be put up to the Prime
Minister, who then advice the President related to the person to be appointed as Ad-Hoc
Judge of the High Court.
  After the President approves the appointment of a Judge , the Secretary of State of India
to the Ministry of Justice will notify the Chief Justice of that High Court and the Chief
Minister of State will issue the required notice in the Indian Gazette.

Other Rules

 Time To Complete Process

A period of three months is sufficient to complete the appointment of AD-HOC Judge.

 Number & Tenure Of Ad-Hoc Judges

The tenure for which an ad hoc Judge is appointed depends on the need but normally the
appointment is made for a period between two to three years looking to the purpose for which
they are appointed.For the time being dependent on the strength of the High Court the number of
Ad-Hoc Judges should be between 2 to 5 in a High Court.

 Ad-Hoc Judges Role

The main objective of Ad-Hoc Judge is to deal with long pendency of cases, the said objective
will be sub served by assigning more than five year old cases to the appointed Ad-Hoc Judges.
But if exigencies so demand for any particular subject matter the Ad-Hoc Judge can also deal
with the cases less than five years old, though the primary objective must be kept in mind. A
division bench of Ad-Hoc judges can also be constituted to hear old cases.

 Allowances Of Ad-Hoc Judges

The emoluments and allowances of an Ad Hoc Judge(s) are at par with a serving Judge of that
High Court minus the pension. This is integral to maintain the dignity of the Judge.
The emoluments of Ad-Hoc Judges are to be charge on the Consolidated Fund of India consist of
salary and allowance. Regarding the housing accommodation, either the rent-free
accommodation is provided or the housing allowance should be made available on same terms
and conditions.

Some Instances Of Appointment Of Ad-Hoc Judges

Article 224A has generally been an inactive provision with only three recorded instances of its
application.
Justice Suraj Bhan of the Madhya Pradesh High Court was appointed as Ad- Hoc Judge after
he retired. He was appointed for a period of one year for the disposal of election petitions cases.

Justice P. Venugopal of the Madras High Court was Judge for less than three years and near to
retirement, he was appointed to a Commission of Inquiry to inquire into certain incidents that
took place in Coimbatore town on 23.7.1981 and again appointed to 59 a one-man commission
to inquire into incidents of communal riots by order dated 22.3.1982. He was appointed as an
Ad-Hoc Judge in year 1982 and again his term was renewed for a period of one year from
19.8.1983.

Most recently in the year 2007, Justice O.P. Srivastava was appointed as Ad-Hoc Judge in
Allahabad High Court.

Conclusion
It has been widely recognized that the retired judges have several decades of adjudicatory
experience, and their talents can be utilized to dispose of the long pending cases.

On account of their adjudicatory experience, they will be fast in disposing old cases and remain
unburdened with administrative work; they could spend their work time in hearing old pending
matters. Thus, the appointment of retired judges as Ad-Hoc judges was strongly recommended in
order to relieve long pendency of cases.
Question 2 : When appeal can be made before Supreme Court.

Answer : Appellate Jurisdiction of Supreme Court Of India

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the
High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any
judgement, decree or final order of a High Court in both civil and criminal cases, involving
substantial questions of law as to the interpretation of the Constitution.

Appeals also lie to the Supreme Court

In civil matters if the High Court concerned certifies:

(a) that the case involves a substantial question of law of general importance, and

(b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme
Court.

In criminal cases, an appeal lies to the Supreme Court if the High Court

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death
or to imprisonment for life or for a period of not less than 10 years, or

(b) has withdrawn for trial before itself any case from any Court subordinate to its authority and
has in such trial convicted the accused and sentenced him to death or to imprisonment for life or
for a period of not less than 10 years, or

(c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorized to
confer on the Supreme Court any further powers to entertain and hear appeals from any
judgement, final order or sentence in a criminal proceeding of a High Court.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in
India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the
Constitution from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any Court or Tribunal in the territory of India.

Appeals permitted under the Constitution

 Article 132 of the Constitution of India, 1950 provides for an appeal to the Supreme Court
from any judgment, decree or final order of a High Court, whether in civil, criminal or other
proceedings, if the High Court certifies that the case involves a substantial question of law as
to the interpretation of the Constitution.
 Article 133 of the Constitution of India, 1950 provides for an appeal to the Supreme Court
from any judgment, decree or final order in a civil proceeding of a High Court if the High
Court certifies that the case involves a substantial question of law of general importance and
in its opinion the said question needs to be decided by the Supreme Court.
 Article 134 of the Constitution of India, 1950 provides for an appeal to the Supreme Court
from any judgment, final order or sentence in a criminal proceeding of a High Court if (a) it
has on appeal reversed an order of acquittal of an accused person and sentenced him to death
or (b) has withdrawn for trial before itself, any case from any Court subordinate to it and has
in such trial convicted the accused and sentenced him to death or (c) it certifies that the case
is a fit one for appeal to the Supreme Court.
 Appeal by Special Leave
Article 136 of the Constitution of India, 1950 provides that the Supreme Court may in its
discretion grant special leave to appeal from any judgment, decree, determination, sentence
or order in any case or matter passed or made by any Court or tribunal in the territory of
India except the Court or tribunal constituted by or under any law relating to armed forces.

Statutory Appeals

Section 379 of the Code of Criminal Procedure, 1973 read with Section 2 of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, as amended by the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Amendment Act, 1972,
provides for an appeal to the Supreme Court from any judgment, final order or sentence in a
criminal proceedings of a High Court, if the High Court (a) has on appeal reversed an order
of acquittal of an accused person and sentenced him to death or to imprisonment for life or to
imprisonment for a period of not less than ten years; (b) has withdrawn for trial before itself
any case from any Court subordinate to its authority and has in such trial convicted the
accused person and sentenced him to imprisonment for life or to imprisonment for a period
of not less than ten years.
 Section 130E of the Customs Act, 1962 provides for an appeal to the Supreme Court from
any judgment of the High Court on a reference made under Section 130, in any case which
the High Court certifies to be a fit one for appeal to the Supreme Court, or any order passed
by the Appellate Tribunal relating, amongst other things, to the determination of any question
having relation to the rate of custom duty or the value of goods for the purpose of
assessment.
 Section 35L of the Central Excise and Salt Act, 1944 provides for an appeal to the Supreme
Court from any judgment of the High Court delivered on a reference made under Section
35G, in any case which the High Court certifies to be a fit one for appeal to the Supreme
Court, or any order passed by the Appellate Tribunal relating, amongst other things, to the
determination of any question having a relation to the rate of duty of excise or to the value of
goods for purpose of assessment.
 Section 23 of the Consumer Protection Act, 1986 provides for an appeal to the Supreme
Court from an order made by the National Commission, entertaining complaints where the
value of the goods or services and compensation, if any, claimed exceeds Rupees One Crore.
 Section 19(1)(b) of the Contempt of Courts Act, 1971 provides for an appeal to the Supreme
Court, as of right, from any order or decision of Division Bench of a High Court in exercise
of its jurisdiction to punish for contempt.
 Section 38 of the Advocates Act, 1961 provides for an appeal to the Supreme Court from an
order made by the Disciplinary Committee of the Bar Council of India under Section 36 or
37 of the said Act.
 Section 116-A of the Representation of People Act, 1951 provides for an appeal to the
Supreme Court on any question, whether of law or fact, from every order passed by a High
Court under Section 98 or Section 99 of the said Act.
 Section 10 of the Special Court (Trial of offences relating to Transactions in Securities) Act,
1992 provides for an appeal to the Supreme Court from any judgment, sentence or order not
being interlocutory order, of the special court, both on fact and on law.
Question 3 : Discuss in detail the concept of 'Rule of Law.

Answer : To simply understand the meaning of rule of law, it means that no man is above law
and also that every person is subject to the jurisdiction of ordinary courts of law irrespective of
their position and rank.

The term ‘rule of law’ is originated from England and India has taken this concept. The concept
of rule of law further requires that no person should be subjected to harsh or arbitrary treatment.
The word ‘law’ in rule of law means that whether he is a man or a society, he must not be
governed by a man or ruler but by law. In other words, as per Article 13 of the Indian
Constitution rule of law means law of land.

According to Black’s Law Dictionary: “Rule of Law” means legal principles of day to day
application, approved by the governing bodies or authorities and expressed in the form of logical
proposition.

According to Oxford Advance Learner’s Dictionary: “Rule of Law” means the situation in
which all the citizens as well as the state are ruled by the law.

According to Professor A.V Dicey, for achieving supremacy of law three principles of postulates
must be followed which are as follows:

1. Supremacy of law

As per the first postulate, rule of law refers to the lacking of arbitrariness or wide discretionary
power. In order to understand it simply, every man should be governed by law.
According to Dicey, English men were ruled by the law and the law alone and also where there
is room for arbitrariness and that in a republic no less than under a monarchy discretionary
authority on the part of the Government must mean insecurity for legal freedom on the part of its
subjects. There must be absence of wide discretionary powers on the rulers so that they cannot
make their own laws but must be governed according to the established laws.

2. Equality before law

According to the second principle of Dicey, equality before law and equal subjection of all
classes to the ordinary law of land to be administered by the ordinary law courts and this
principle emphasizes everyone which included government as well irrespective of their position
or rank. But such element is going through the phase of criticisms and is misguided. As stated by
Dicey, there must be equality before law or equal subjection of all classes to the ordinary law of
land.

3. Predominance of Legal Spirit

According to the third principle of Dicey, general principles of the Indian Constitution are the
result of the decisions of the Indian judiciary which determine to file rights of private persons in
particular cases. According to him, citizens are being guaranteed the certain rights such as right
to personal liberty and freedom from arrest by many constitutions of the states (countries). Only
when such rights are properly enforceable in the courts of law, those rights can be made
available to the citizens. Rule of law as established by Dicey requires that every action of the
administration must be backed and done in accordance with law. In modern age, the concept of
rule of law oppose the practice of conferring discretionary powers upon the government and also
ensures that every man is bound by the ordinary laws of the land as well as signifies no
deprivation of his rights and liberties by an administrative action.

Rule of Law Under Indian Constitution

In order to develop Indian democracy, rule of law has played a great role. At the time of framing
of Constitution, the framers had two options i.e. USA and England. Some of the provisions were
adopted from USA and some of them were adopted from England. Rule of law was adopted from
England by our constitutional fathers and many provisions were incorporated in the Indian
Constitution. Indian Constitution is considered to be supreme and no one is above Indian
Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined
in Part III of the Indian Constitution.

In case of violation of such rights, one can approach Supreme Court or High Court under Article
32 and 226 of the Indian Constitution. The Constitution of India is enriched with the principles
of law i.e. justice, equality and liberty. Any law made by the Central government or State
government must be complied in accordance with the Constitution of India. If any law made by
the legislature contravenes with the provisions of the Constitution then such law will be declared
void.
Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in
the nature of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari. The power of
judicial review is also given to Supreme Court in order to prevent any ultra vires law so as to
preserve ‘Rule of law’.

Role of Indian Judiciary

There are a plethora of cases where the concept of rule of law was discussed and came into light.
Some of the cases are as follows:

 ADM Jabalpur v. Shivkant Shukla

This case is also known as “Habeas Corpus case”. It is one of the most importantcase when
comes to rule of law. The question that was raised before the hon’ble court was that whether
there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in
context relating to the proclamation of emergency where the enforcement of Articles 14, 21 and
22 were suspended.

 Som Raj v. State of Haryana

In this case it was held that the absence of arbitrary power is the postulate of rule of law upon
which the whole constitutional edifice is dependent.

 Union of India v. Raghubir Singh

In this case it was held by the court that a considerable degree that governs the lives of the
people and regulates the State function flows from the decision of the superior courts.

 Chief Settlement Commissioner, Punjab v. Om Prakash

In this case, Supreme Court observed“In our constitutional system, the central and most
characteristic feature is the concept of rule of law which means, in the present context, the
authority of law courts to test all administrative action by the standard of legality. The
administrative or executive action that does not meet the standard will be set aside if the
aggrieved person brings the matter into notice.”

 Keshvananda Bharti v. State of Kerela

In this case, the Supreme Court enunciated the concept of rule of law as one of the most
important aspects of doctrine of basic structure.

 Maneka Gandhi v. Union of India

In this case Supreme Court declared that Article 14 strikes against arbitrariness.

 Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil

In this case, the ration laid down was “If the rule of law has to be preserved as the essence of the
democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to
appreciate the evidence and construe the law in a manner which would sub serve this higher
purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling
electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that
the best available men should be chosen as people's representatives for proper governance of the
country. This can be best achieved through men of high moral and ethical values who win the
elections on a positive vote obtained on their own merit and not by the negative vote of process
of elimination based on comparative demerits of the candidates.”

 Secretary, State of Karnataka and Ors. v. Umadevi

A Constitution Bench of this Court has laid down the law in the following terms: “Thus, it is
clear that adherence to the rule of equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our Constitution, a court would certainly be
disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking
of the need to comply with the requirements of Article 14 read with Article 16 of the
Constitution.”
Question 4 : Discuss about the concept of Federalism and Challenges before it in India.

Answer : Federalism is a system of government in which power is divided between a central

authority and constituent political units. Indian Federalism is different from the type of
Federalism practiced in the countries like the United States of America. Indian model of
federalism is called quasi-federal system as it contains major features of both a federation and
union. It can be better phrased as ‘federation sui generis’ or federation of its own kind.

It is a compromise between two conflicting considerations such as autonomy enjoyed by states

within the constitutionally prescribed limit (State List) and the need for a strong center in view of
the unity and integrity of the country (Union List).

Federal Features of the India Union

 Two governments i.e. Union Government and State governments

 Division of powers between the union and its constituents (Seventh Schedule of the
Constitution contains three lists such as the Union List, State List, and Concurrent List)
 Supremacy of the Constitution (Basic structure of the Constitution is made indestructible
by the Judiciary)
 Partial rigidity of the Constitution
 Independent Judiciary
 Bicameralism
 Unitary Features of the Constitution

Other features include

 Single Constitution  Appointment of the Centre

 Single citizenship  All India Services
 Flexibility of Constitution  Emergency provisions
 Integrated judiciary  Importance of Federalism in India

Federalism is the most relevant factor of modern constitutionalism. The core objectives of Indian
federalism are unity in diversity, devolution in authority, and decentralization in
administration. Through federalism, the State pursues the goal of common welfare in the midst
of wide diversity in socio-cultural, economic spheres.
Issues and Challenges faced by Indian Federalism

1. Regionalism

It is considered one of the significant challenges to federalism in India.Federalism best thrives as

a democratic system when it mitigates the centralization of power sharing between the center and
the states.

Regionalism or love for one’s area, despite India’s tradition of successful federal rule over the
years since independence, still raises its head in different parts of the country.

2. Division of Powers

Unlike the USA and Australia, in India distribution of power is made under Three Lists found in
the Seventh Schedule of the Constitution. The powers of both the Central and State Governments
are specifically enumerated in the Union list and State list respectively while powers mentioned
in the Concurrent list are enjoyed by the two sets of governments. The residuary powers are
vested in the Central government.

The general principle underlying the division of powers is that all matters of national importance,
e.g. defence, foreign affairs, railways, currency are allotted to the Central government while
matters that are primarily of local or regional importance e.g., education, public health, police,
local administration are assigned to regional governments. Some matters which require the
involvement of both the centre and states like criminal law, forest, economic and social planning
are assigned in the Concurrent List. However, in the case of conflict over the legislation on any
of the subjects mentioned in the Concurrent List, the Centre supersedes the States.

3. Absence of Fiscal Federalism

The Indian Constitution, while expressly vesting the Centre with greater powers of taxation, also
provides for an institutional mechanism — the Finance Commission — to determine the share of
the States in the Central tax revenues by way of correcting this imbalance.

While deciding the devolution of taxes and the provisions of grants the Finance Commission is
required to address both the vertical imbalance between the Centre and the States and the
horizontal imbalance between states.
4. Unequal Representation of Units

With a view to preventing the evil of predominant influence of larger units over smaller units in
a federation, most federations in the world have resorted to some constitutional mechanism like
an equal representation of units or states in the Second Chamber and ratification of all
amendments to the Constitution by states.

In India, there is no such provision of an equal representation of states in the RajyaSabha, the
Second Chamber and nor the states have any substantial say over the amendments done to the
Constitution from time to time.

5. Centralized Amendment Power

In a typical federation, the power of amendment to the Federal Constitution lies on a shared basis
between the federation and its units. In India, the power of constitutional amendment lies with
the Centre under Article 368 and other provisions. Although ratification of half of the states is
sought for in some limited areas, the states in the Indian Union have virtually no power in this
critical area of governance.

6. The Indestructible Union with Destructible Units

Unlike successful federations, India Constitution doesn’t have the provision for the secession of
states from the Union of India. The Union has been made indestructible with a view to protecting
unity and integrity in a country like India.

7. Office of the governor

The office of the Governor for each state in India has been a sensitive issue as it sometimes poses
a threat to the federal character of Indian Union. Centre’s visible arbitrariness in misusing such
constitutional office has been the subject of acrimonious debates and divergent opinions in the
country.

8. Single Constitution and Citizenship

Unlike the Constitution of the USA, the Constitution of India lays down the constitution for the
States as well and no state except Jammu and Kashmir has right to decide its own
constitution.The Indian Constitution, unlike the other federal constitutions of the world,
introduces single citizenship. It is based upon the idea of ‘one nation one citizenship’. All are
citizens of India irrespective of whichever state he/she lives in. The States don’t confer any
separate status as a citizen of the State.

9. Integrated Services

The integrated judiciary is a typical feature of Indian federation. Unlike typical federations, in
India Supreme Court is the apex court and all other courts are subordinate to it. The States don’t
have separate independent courts dealing specially with state matters. Also, the machinery for
election, accounts, and audit in India is integrated.

10. Centralised Planning

Although economic and social planning is found in the Concurrent List of the Seventh Schedule
to the Constitution, the Union Government enjoys unbridled authority over national and regional
planning in India. Centralised planning, through the Planning Commission, now NITI
Aayog appointed by the Centre, considerable preponderance in legislative power for the Union,
the financial dependence of the states on the Centre’s mercy, the administrative inferiority of the
states make the states meek and weak.

11. Language Conflicts

Diversity in languages in India sometimes causes a blow the federal spirit of the Constitution.
There are 22 languages constitutionally approved in India. Besides, hundreds of dialects are
spoken across the country. Trouble arises when the strongest unit of the federation attempts to
force a particular language on others. The tussle for official language in India is still a burning
issue. The southern states’ opposition to Hindi as the official language of India has led to deep-
seated language crisis in India.

12. Issue of Religion

India is a fine example of religious heterogeneity that sometimes gives rise to turmoil to weaken
the federation. But the religious process need not be always divisive. So long as there is a
reasonable tolerance on the part of the people and a genuine secular policy on the part of the
government, religion may not cause imbalances in a federation.
Question 5 : Describe the provision of Ordinance making power of President.

Answer : The Ordinance is like the law, but not by parliament, but by the President of India
when Lok Sabha and Rajya Sabha or any of them are not present at the meeting. On the
recommendation of the union cabinet, the President can promulgate an ordinance. In the same
manner, the Governor of states can also promulgate an ordinance only when a legislative
assembly is not in session. Article 123 empowers the President of India certain law making
power, i.e. issuing an Ordinance when one of the houses of parliament is not in session, which
makes it impossible for parliament to pass and enact laws.

Ordinance Making Power Of The President - Constitutional Provisions

 An Ordinance can be retroactive, which means it can be put into effect before it is
adopted.
 An Ordinance issued during a session of Parliament is considered invalid.
 The Parliament has to approve the Ordinance in order to stay a law within six weeks of
its reassembly. It ceases to exist if the parliament fails to act within six weeks of its
reassembly.
 Acts and laws that occur in accordance with the Ordinance remain in force until the
expiration of its validity.
 The President of India is one of the rarest leaders in the world with the power to issue
ordinance.
 The power to issue Ordinance cannot be seen as a substitute for the legislative power of
the President.
 The President's authority to roll out ordinance is justifiable if intent is proved mala fide.
 Ordinances can only be issued on matters for which the Parliament of India is
empowered to legislate.
 The Fundamental rights of citizens guaranteed by the Constitution of India cannot be
crossed out through the Ordinance.
 The order will also be considered null and void if both the houses of the parliament pass a
resolution that disapproves of it.
Limitations To The Power Ordinance Making Power Of The President

 When legislature is not in session: Only when either of the houses of the Parliament is
not in session then the President can only promulgate Ordinance.
 Parliament should approve: Once an Ordinance has been passed, it must be passed by
parliament within six weeks of the reassembling of the parliament.
 Immediate action is needed: The President, although vested with the power to issue
Ordinance, cannot do the same unless he is convinced that there are circumstances that
require immediate action.
 Non-discretionary: His power of ordinance-making is not a discretionary power, and he
can promulgate or withdraw an ordinance only on the advice of the council of ministers
headed by the prime minister.

The President's Ability To Issue Ordinances

The 38th Amendment Act added a new Clause (4) to Article 123, which states that the
President's satisfaction with the issuance of the ordinance is final and cannot be appealed to the
court for any reason.

However, the 44th amendment to the Indian Constitution canceled it and made the President’s
satisfaction subject to judicial review, stating that the president's powers could be challenged in
court of law, if it is based on bad faith, corrupt motives, or has any malaise of intent.

He can make an ordinance only when he is satisfied that the circumstances make it necessary for
him to take immediate action. In Cooper case, (1970), the Supreme Court held that the
President’s satisfaction can be questioned in a court. Thus, the President’s satisfaction is
justiciable on the ground of malafide. Further, in S.R. Bommai v. Union of India, the scope of
Judicial Review was expanded and any action by the President taken without the relevant
materials, would be considered to be in bad faith.

The Supreme Court in R.S. Cooper v. Union of India (1970) ruled that the President's decision
to issue the Ordinance could be challenged on the grounds that no “immediate action” was
required and that the Ordinance was passed primarily to avoid debate and discussion in the
Legislature.
In DC Wadhwa vs. the State of Bihar (1987), it is argued that the executive's legislative power
to issue ordinance should be used in exceptional circumstances and should not replace the law-
making power of the legislature.

In Krishna Kumar Singh vs. State of Bihar, Supreme Court held that the power to issue
ordinances is not absolute, but is conditional on the satisfaction of the existence of circumstances
to take immediate action."