Can an ordinance be struck down on grounds that there is no urgency to promulgate it?

Article 123 confers the president the power to promulgate ordinances and along with it lays
down the guidelines and essential factors that has to be considered before promulgating an
ordinance. As provided by Article 123: “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”1. The specific mention of “immediate action” should
be taken note of as one of the most essential pre requisites before promulgating an ordinance.

It was observed in RC Cooper vs. Union of India (1970) the Supreme Court, while examining
the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance,
1969 which sought to nationalise 14 of India’s largest commercial banks, held that the
President’s decision could be challenged on the grounds that ‘immediate action’ was not
required. 2

This is why this particular presidential power must be subject to judicial review, simply
ignoring whether or not the key feature of Article 123 which is the need for immediate action,
on the basis that presidential satisfaction is purely subjective is an imminent threat to
parliamentary democracy. The then Chief Justice P.N. Bhagwati observed in the case of D.C
Wadhwa v. State of Bihar that such use of Ordinances could not be allowed as it was
"perverted to serve political ends."3 The Union Government of Rashtra has passed the two
ordinances after conclusion of a budget session amidst a pandemic crisis which was crippling
down the nation. The reasons stated for the urgency of the ordinances coming in force
immediately after the promulgation was that the agricultural reforms needed to be brought
into action before the agriculture season started in Rashtra in the month of June, the Union
Government stated that this was expedient. We fail to see expediency in passing ordinances
relating to the agricultural sector when the budget session in itself was constrained to and
focussing on the pandemic crisis which was the problem at hand. In addition to this if the
interest of the agricultural sector was indeed the government’s priority they would not have
hastily passed such an ordinance in the name of urgency as it is known that changes like these
should be smooth and in baby steps while dealing with big sectors like agriculture for the

1
The Constitution Of India 1949, Article 123 in
2
1970 AIR 564, 1970 SCR (3) 530
3
1987 AIR 579, 1987 SCR (1) 798
changes to be effective. This makes us doubt the object behind the promulgation of these
ordinances.

Justice Bhagwati also observed in the case of of D.C Wadhwa v. State of Bihar that it is
contrary to all democratic norms that the executive should have power to make law. While it
is understood that this is why the ordinances are limited to a point of time, it should be kept in
mind that this can be misused as well as ordinances can be re-promulgated. For instance in
this particular case the court was examining a case where a state government (under the
authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued
new Ordinances to replace the old ones, instead of laying them before the state legislature. A
total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. 4 This
opinion was furthered by a Supreme Court case, Krishna Kumar Singh v. State of Bihar
(2017) when they said that re-promulgation was a fraud on the Constitution and sub-version
of democratic legislative processes.5 These are the reasons why this presidential power should
undoubtedly be subject to judicial review because if not this can not only give the executive
arbitrary, exploitable power but can also be used to conveniently fulfil political agenda, this
can also be an infringement of the principles of the separation of powers.

In conclusion, the importance of adherence to one of the most key features in Article 123 of
the Constitution must be understood. Any ordinance promulgated failing to adhere to the
essential of the need for immediate action will not only be a democratic threat but also
unconstitutional and hence these kind of ordinances should be subject to judicial review and
can be struck down. In the case of Rashtra the reasons given by the union government is
insufficient to prove the urgency of promulgating it.

4
1987 AIR 579, 1987 SCR (1) 798
5
https://indiankanoon.org/doc/107225908/