3. JUDICIARY V.

EXECUTIVE:

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3.1. ORDNANCE-MAKING POWERS OF THE PRESIDENT:

Article 123 of the Constitution grants the President certain law making powers to promulgate
Ordinances when either of the two Houses of Parliament is not in session and hence it is not
possible to enact laws in the Parliament.

An Ordinance may relate to any subject that the Parliament has the power to legislate on.
Conversely, it has the same limitations as the Parliament to legislate, given the distribution of
powers between the Union, State and Concurrent Lists. Thus, the following limitations exist
with regard to the Ordinance making power of the executive:

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’[ii].

iii.   Parliamentary approval during session: Ordinances must be approved by Parliament

within six weeks of reassembling or they shall cease to operate.  They will also cease to
operate in case resolutions disapproving the Ordinance are passed by both the Houses.  

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3.2. JUDICIAL REVIEW OF ORDINANCES:

In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court widened the
boundaries of judicial review to the extent that it can now examine whether the President or
the Governor was spurred by an “oblique motive” to bypass the Legislature and promulgate
an ordinance.

In case the apex court concludes that the President or the Governor was influenced by ulterior
motives to promulgate the ordinance, such an act by the two constitutional authorities would
amount to a fraud on their powers, the apex court had held
“The satisfaction of the President under Article 123 and of the Governor under Article 213 is
not immune from judicial review,” Justice D.Y. Chandrachud wrote in a common judgment
with Justices S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageshwara Rao.

It has been observed that the apex court would scrutinise whether the satisfaction of the
President or the Governor to promulgate an ordinance was based on relevant material or
whether it amounted to a “fraud on power or was actuated by an oblique motive.”

The seminal question that came up in reference before the seven-judge Constitution Bench
led by Chief Justice of India T.S. Thakur dealt with the constitutionality of seven successive
re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of
Management and Control) Ordinance of 1989. The State government had approached the
Supreme Court after the High Court of Patna declared that repeated re-promulgation of the
ordinances was unconstitutional after relying on the D.C. Wadhwa judgment on the dos and
don’ts of promulgation of ordinances by another Constitution Bench of the Supreme Court in
1986.

Confirming the High Court’s view, Justice Chandrachud, supported by Chief Justice Thakur
in a separate judgment, held that “re-promulgation of ordinances is a fraud on the
Constitution and a subversion of democratic legislative processes.”

“The requirement of laying an ordinance before Parliament or the State Legislature is a

mandatory constitutional obligation cast upon the government,” Justice Chandrachud held in
the common judgment.

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3.3. CASES:

3.3.1. A.K. Roy v. Union of India1:

In AK Roy vs. Union of India (1982) while examining the constitutionality of the National

Security Ordinance, 1980, which sought to provide for preventive detention in certain cases,
the Court argued that the President’s Ordinance making power is not beyond the scope of
judicial review. However, it did not explore the issue further as there was insufficient

1
(1982) 1 SCC 271
evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to
exercise judicial review over the President’s decision only when there were substantial
grounds to challenge the decision, and not at “every casual and passing challenge”.

3.3.2. T Venkata Reddy vs. State of Andhra Pradesh2:

In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the

promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers
Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the
Ordinance making power of the President and the Governor was a legislative power,
comparable to the legislative power of the Parliament and state legislatures respectively. This
implies that the motives behind the exercise of this power cannot be questioned, just as is the
case with legislation by the Parliament and state legislatures.

3.3.3. DC Wadhwa vs. State of Bihar3:

It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive
to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute
for the law making power of the legislature.  Here, 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.  The Supreme Court argued that if Ordinance making
was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-
promulgated Ordinances.

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2
1985 (3) SCC 198)
3
1987 AIR 579 1987 SCR (1) 798 1987 SCC (1) 378 JT 1987 (1) 70 1986 SCALE (2)1174