NOTE: Ordinance-making

Table of Contents
I. Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579...................................................................................1
II. Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1.................................................................................4
III. A. K. Roy v. Union of India, AIR 1982 SC 710............................................................................................6
IV. R. K. Garg v. Union of India, AIR 1981 SC 2138........................................................................................8
 I. Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579

- Issue: power of the Governor under Article 213 of the Constitution to repromulgate ordinances
from time to time without getting them replaced by Acts of the legislature. The Constitutional
validity of three different Ordinances issued by the Governor of Bihar were challenged.

- Facts:

4. Governor in the State of Bihar had been indulging in the practice of repromulgating the ordinances from
time to time so as to keep them alive for an indefinite period of time. The Governor of Bihar promulgated
256 ordinances between 1967 and 1981 and all these ordinances were kept alive for periods ranging
between one to 14 years by repromulgation from time to time. Out of these 256 ordinances 69 were
repromulgated several times and kept alive with the prior permission of the President of India. It will thus
be seen that the power to promulgate ordinances was used by the Government of Bihar on a large scale
and after the session of the State Legislature was prorogued, the same ordinances which had ceased to
operate were repromulgated containing substantially the same provisions almost in a routine manner.

Thus the Bihar Forest Produce (Regulation of Trade) Third Ordinance continued to be in force for a period
of more than six years, the Bihar Intermediate Education Council Third Ordinance remained in force for a
period of more than one year, while the Bihar Bricks Supply (Control) Third Ordinance was continued in
force for a period of more than five years.

5. The Government of Bihar, it seems, made it a settled practice to go on repromulgating the ordinances
from time to time and this was done methodologically and with a sense of deliberateness. Immediately at
the conclusion of each session of the State legislature, a circular letter used to be sent by the Special
Secretary in the Department of Parliamentary Affairs to all the Commissioners, Secretaries, Special
Secretaries, Additional Secretaries and all Heads of Departments intimating to them that the session of the
legislature had been got prorogued and that under Article 213 clause (2)(a) of the Constitution all the
Ordinances would cease to be in force after six weeks of the date of reassembly of the legislature and that
they should therefore get in touch with the Law Department and immediate action should be initiated to
get “all the concerned ordinances repromulgated”, so that all those ordinances are positively
repromulgated before the date of their expiry. This circular letter also used to advise the officers that if the
old ordinances were repromulgated in their original form without any amendment, the approval of the
Council of Ministers would not be necessary.
 DEPARTMENT OF PARLIAMENTARY AFFAIRS
Dated July 29, 1981
Subject: Regarding repromulgation of ordinances

From: Basant Kumar Dubey, Special Secretary to the Govt.

To: All Commissioners and Secretaries; All Special Secretaries; All Additional Secretaries; All Heads of
Departments.

I am directed to say that the budget session of the legislature (June-July 1981) has been got prorogued
after the completion of the business of both the houses on July 28, 1981. Under the provisions of
Article 213(2)(a) of the Constitution all the ordinances cease to be in force after six weeks of the date
of the reassembly of the legislature. This time the session of the Legislative Assembly has begun on
June 29, 1981 and that of the Legislative Council on July 1, 1981. Therefore from July 1, 1981, six
weeks, that is, 42 days would be completed on August 11, 1981 and if they are not repromulgated
before the aforesaid date, then all the ordinances will cease to be in force after August 11, 1981.

It is, therefore, requested that the Law Department may be contacted and immediate action be
initiated to get all the concerned ordinances repromulgated so that they are definitely repromulgated
before August 11, 1981. If the old ordinances are repromulgated in their original form without any
amendment, then the approval of the Council of Ministers is not necessary. This should be given the
topmost priority and necessary action should be taken
immediately”.

This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a
massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the
legislature or considering whether the circumstances existed which rendered it necessary for the Governor
to take immediate action by way of repromulgation of the ordinances. The Government seemed to
proceed on the basis that it was not necessary to introduce any legislation in the legislature but that the
law could be continued to be made by the Government by having the ordinances repromulgated by the
Governor from time to time. The question is whether this practice followed by the Government of Bihar
could be justified as representing legitimate exercise of power of promulgating ordinances conferred on
the Governor under Article 213 of the Constitution.

- Finding(s)

 Procedure not respected

6. ….. The object of this provision is that since the power conferred on the Governor to issue ordinances is
an emergent power exercisable when the legislature is not in session, an ordinance promulgated by the
Governor to deal with a situation which requires immediate action and which cannot wait until the
legislature reassembles, must necessarily have a limited life.

 Life span of an ordinance

Since Article 174 enjoins that the legislature shall meet at least twice in a year but six months shall not
intervene between its last sitting in one session and the date appointed for its first sitting in the next
session and an ordinance made by the Governor must cease to operate at the expiration of six weeks from
the reassembly of the legislature, it is obvious that the maximum life of an ordinance cannot exceed seven-
and-a-half months unless it is replaced by an Act of the legislature or disapproved by the resolution of the
legislature before the expiry of that period. The power to promulgate an ordinance is essentially a power
to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political
ends”. It is contrary to all democratic norms that the executive should have the power to make a law, but
in order to meet an emergent situation, this power is conferred on the Governor and an ordinance issued
by the Governor in exercise of this power must, therefore, of necessity be limited in point of time……

 Exceptional circumstances when repromulgation may be permitted

The Government cannot bypass the legislature and without enacting the provisions of the ordinance into
an Act of the legislature, repromulgate the ordinance as soon as the legislature is prorogued. Of course,
there may be a situation where it may not be possible for the government to introduce and push through
in the legislature a Bill containing the same provisions as in the ordinance, because the legislature may
have too much legislative business in a particular session or the time at the disposal of the legislature in a
particular session may be short, and in that event, the Governor may legitimately find that it is necessary
to repromulgate the ordinance. Where such is the case, re-promulgation of the ordinance may not be open
to attack. But, otherwise, it would be a colourable exercise of power on the part of the executive to
continue an ordinance with substantially the same provisions beyond the period limited by the
Constitution, by adopting the methodology of repromulgation. It is settled law that a constitutional
authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision
inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated
by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision.

 Justiciability of Ordinances

7. ……. It is true that, according to the decisions of the Privy Council and this Court, the court cannot
examine the question of satisfaction of the Governor in issuing an ordinance, but the question in the
present case does not raise any controversy in regard to the satisfaction of the Governor. The only
question is whether the Governor has power to repromulgate the same ordinance successively without
bringing it before the legislature. That clearly the Governor cannot do. He cannot assume legislative
function in excess of the strictly defined limits set out in the Constitution because otherwise he would be
usurping a function which does not belong to him. It is significant to note that so far as the President of
India is concerned, though he has the same power of issuing an ordinance under Article 123 as the
Governor has under Article 213, there is not a single instance in which the President has, since 1950 till
today, repromulgated any ordinance after its expiry. The startling facts which we have narrated above
clearly show that the executive in Bihar has almost taken over the role of the legislature in making laws,
not for a limited period, but for years together in disregard of the constitutional limitations. This is clearly
contrary to the constitutional scheme and it must be held to be improper and invalid. We hope and trust
that such practice shall not be continued in the future and that whenever an ordinance is made and the
Government wishes to continue the provisions of the ordinance in force after the assembling of the
legislature, a Bill will be brought before the legislature for enacting those provisions into an Act. There
must not be ordinance-Raj in the country.

II. Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1

- Facts:
In this case there were series of Ordinances passed by the Govt. of Bihar, through the state sought to take
over 429 Sanskrit Schools, transferring the teachers and all employees of the school to state government.
In the year 1989, the government issued the first Ordinance which was then followed by five successive
ordinances. On 13 August 1990 the Governor promulgated a fresh Ordinance. This Ordinance contained in
clauses 3 and 4, provisions which were materially different from those of the first three Ordinances.

Clauses 3 and 4 provided as follows:- 3 Taking over of management and control of nongovernment Sanskrit
schools by State Government.(1) With effect from the date of enforcement of this Ordinance, 429 Sanskrit
schools mentioned in Schedule 1 shall vest in the State Government and the State Government shall
manage and control thereafter.

Effect of taking over the management and control.(1) The staff working in the Sanskrit schools mentioned
in Annexure 1 of the Ordinance related to integration of its management and control into the State
Government as per Schedule 3(1), will not be the employees of this school until and unless the
Government comes to a decision regarding their services.

The Ordinances promulgated by the Governor followed a consistent pattern. None of the Ordinances was
laid before the legislature. Each one of the Ordinances lapsed by efflux of time, six weeks after the
convening of the session of the legislative assembly. When the previous Ordinance ceased to operate, a
fresh Ordinance was issued when the legislative assembly was not in session. The legislative assembly had
no occasion to consider whether any of the Ordinances should be approved or disapproved. No legislation
to enact a law along the lines of the Ordinances was moved by the government in the legislative assembly.
The last of the Ordinances, like its predecessors, cease to operate as a result of the constitutional limitation
contained in Article 213 (2)(a). The subject was entirely governed by successive Ordinances; yet another
illustration of what was described by this Court as an Ordinance raj barely three years prior to the
promulgation of the first in this chain of Ordinances.

None of these Ordinances was placed before the state legislature. However, the government failed to
enact a statute which met a requirement of all these Ordinances. Thus, the final Ordinance lapsed in the
year 1992. The employees and the staff of the school challenged this in the court.

The Governors (under Article 213) is a necessary concomitant to the supremacy of a democratically elected
legislature. The reassembling of the legislature defines the outer limit for the validity of the Ordinance
promulgated during its absence in session. Within that period, a legislature has authority to disapprove the
Ordinance. The requirement of laying an Ordinance before the legislative body subserves the constitutional
purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the
legislature. The legislature has before it a full panoply of legislative powers and as an incident of those
powers, the express constitutional authority to disapprove an Ordinance. If an Ordinance has to continue
beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature
incorporating its provisions.

The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the
constitutional obligation imposed by Article 213(2). It is upon an Ordinance being laid before the House
that it is formally brought to the notice of the legislature. Failure to lay the Ordinance is a serious infraction
because it may impact upon the ability of the legislature to deal with the Ordinance include the issue as to
whether the consequences which have taken place under the Ordinance have assumed an irreversible
character. In a suitable case, it would be open to the court to mould the relief; and The satisfaction of the
President under Article 123 and of the Governor under Article 213 is not immune from judicial review
particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the
deletion of clause 4 in both the articles. The test is whether the satisfaction is based on some relevant
material. The court in the exercise of its power of judicial review will not determine the sufficiency or
adequacy of the material. The court will scrutinise whether the satisfaction in a particular case constitutes
a fraud on power or was actuated by an oblique motive. Judicial review in other words would enquire into
whether there was no satisfaction at all.

- Judgement.

a. Nature of power & conditions that need to be fulfilled

The power which has been conferred upon the President under Article 123 and the Governor under Article
213 is legislative in character. The power is conditional in nature: it can be exercised only when the
legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the
Governor that circumstances exist which render it necessary to take immediate action; An Ordinance
which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by
the legislature but it must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after
the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an
Ordinance may also be withdrawn; The constitutional fiction, attributing to an Ordinance the same force
and effect as a law enacted by the legislature comes into being if the Ordinance has been validly
promulgated and complies with the requirements of Articles 123 and 213; The Ordinance making power
does not constitute the President or the Governor into a parallel source of law making or an independent
legislative authority; Consistent with the principle of legislative supremacy, the power to promulgate
ordinances is subject to legislative control.

The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory
constitutional obligation cast upon the government. Laying of the ordinance before the legislature is
mandatory because the legislature has to determine: (a) The need for, validity of and expediency to
promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether
an Act incorporating the provisions of the ordinance should be enacted (with or without amendments);
The failure to comply with the requirement of laying an ordinance before the legislature is a serious
constitutional infraction and abuse of the constitutional process;

b. Consequences of rights, privileges, obligations and liabilities bestowed via the Ordinance.

The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which
has ceased to operate must be determined as a matter of construction. The appropriate test to be applied
is the test of public interest and constitutional necessity. This would include the issue as to whether the
consequences which have taken place under the Ordinance have assumed an irreversible character. In a
suitable case, it would be open to the court to mould the relief; and

c. Is the satisfaction of the President justiciable?

The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune
from judicial review particularly after the amendment brought about by the forty-fourth amendment to
the Constitution by the deletion of clause 4 in both the articles. The test is whether the satisfaction is
based on some relevant material. The court in the exercise of its power of judicial review will not
determine the sufficiency or adequacy of the material. The court will scrutinise whether the satisfaction in
a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review in
other words would enquire into whether there was no satisfaction at all.

d. Decision
We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and
ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power.
These ordinances which were never placed before the state legislature and were re-promulgated in
violation of the binding judgment of this Court in D C Wadhwa are bereft of any legal effects and
consequences. The ordinances do not create any rights or confer the status of government employees.
However, it would be necessary for us to mould the relief (which we do) by declaring that no recoveries
shall be made from any of the employees of the salaries which have been paid during the tenure of the
ordinances in pursuance of the directions contained in the judgment of the High Court.

By the verdict delivered by 7 Judge bench of the Supreme Court, it is unequivocally clear that Ordinances
are subject to the judicial review and they do not automatically create the permanent effect. The
ordinance making power of the government is generally alleged to have been abused by the
government….. The majority decision held by the Justice D Y Chandrachud, in the ratio of 5:2, has become
a novel precedent for the future executions of democratic governance. Justice Chandachud further held
that “issuing of Ordinance is conditional upon a satisfaction that circumstances exist rendering it necessary
to take immediate action”. Thus, according to the majority decision of the court the Ordinance cannot be
relieved from the judicial scrutiny.

III. A. K. Roy v. Union of India, AIR 1982 SC 710

- Facts

The National Security ordinance, 1980, was passed in order "to provide for preventive detention in certain
cases end for matters connected therewith." It was made applicable to the whole of India except the State
of Jammu & Kashmir and it came into force on September 23, 1980. The Parliament was not in session
when it was promulgated and its preamble recites that it was being issued because the "President is
satisfied that circumstances exist which render it necessary for him to take immediate action".

- Issue: Is the power to make an ordinance a legislative power or an executive power?

- Findings

a. Article 13 and 357

 Is an ordinance a law?
Article 13 (2) provides that the State shall not make any law which takes away or abridges the rights
conferred by Part III and any law made in contravention of this provision shall, to the extent of the
contravention, be void. Clause (3) of Article 13 provides that in Article 13, "law" includes, inter alia, an
ordinance, unless the context otherwise requires. In view of the fact that the context does not otherwise
so require, it must follow from the combined operation of clauses (2) 'and (3) of Article 13 that an
ordinance issued by the President under Article 123, which is equated by clause (2) of that article with an
Act of Parliament, is subject to the same constraints and limitations as the latter. Therefore, whether the
legislation is Parliamentary or Presidential, that is to say, whether it is a law made by the Parliament or an
ordinance issued by the President, the limitation on the power is that the fundamental rights conferred by
part III cannot be taken away or abridged in the exercise of that power. An ordinance, like a law made by
the Parliament, is void to the extent of contravention of that limitation

 Articles 356 & 357

By Article 357 (I) (a), if by a proclamation issued under Article 356 (1) it has been declared that the powers
of the Legislature of the State shall be exercisable by or under the authority of Parliament, it is competent
for the Parliament to confer on the President the power of the Legislature of the State to make laws.
Indeed, by the aforesaid clause (a), the Parliament can not only confer on the President the power of the
State Legislature to make laws but it can even authorise the President to delegate the power so conferred
to any authority to be specified by him in that behalf. The marginal note to Article 357 speaks of the
"Exercise of Legislative powers" under the proclamation issued under Article 356. There cannot be the
slightest doubt that not only the power exercised by the President under Article 357(1 )(a) but even the
power exercised by his delegate under that clause is legislative in character. It is therefore not true to say
that, under our Constitution, the exercise of legislative power by the legislature properly so called is the
only source of law. Ordinances issued by the President and the Governors and the laws made by the
President or his delegate under Article 357 (1) (a) partake fully of legislative character and are made in the
exercise of legislative power, within the contemplation of the Constitution.

b. Legislative or Executive Power?

 Intention of the drafters

It is thus clear that the Constituent Assembly was of the view that the President's power to legislate by
issuing an ordinance is as necessary for the peace and good government of the country as the Parliament's
power to legislate by passing laws. The mechanics of the President's legislative power was devised
evidently in order to take care of urgent situations which cannot brook delay. The Parliamentary process of
legislation is comparatively tardy and can conceivably be time-consuming. It is true that it is not easy to
accept with equanimity the preposition that the executive can indulge in legislative activity but the
Constitution is what it says and not what one would like it to be. The Constituent Assembly indubitably
thought, despite the strong and adverse impact which the Governor-General's ordinance-making power
had produced on the Indian Community in the pre-indepence era, that it was necessary to equip the
president with legislative powers in urgent situations. After all, the Constitution makers had to take into
account life's realities. As observed by Shri Seervai in 'Constitutional Law of India' (2nd Ed., p. 16), "Grave
public inconvenience would be caused if on an Act, like the Bombay Sales Tax Act, being declared void no
machinery, existed whereby a valid law could be promptly promulgated to take the place of the law
declared void".

 Verdict

In R.C. Cooper v. Union of India(l), Shah J. said that,

"The President is under the Constitution not the repostory of the legislative power of the Union, but
with a view to meet extraordinary situations demanding immediate enactment of laws, provision is
made in the Constitution investing, the President with power to legislate by promulgating ordinances."

The Constituent Assembly therefore conferred upon the executive the power to legislate, not of course
intending that the said power should be used recklessly or by imagining a state of affairs to exist when, in
fact, it did not exist; nor, indeed, intending that it should be used mala fide in order to prevent the people's
elected representatives from passing or rejecting a Bill after a free and open discussion, which is of the
essence of democratic process. Having conferred upon the executive the power to legislate by ordinances,
if the circumstances were such as to make the exercise of that power necessary, the Constituent Assembly
subjected that power to the self-same restraints to which a law passed by the legislature is subject. That is
the compromise which they made between the powers of Government and the liberties of the people.
Therefore, in face of the provisions to which we have already referred, it seems to us impossible to accept
Shri Garg's contention that a ordinance made by the President is an executive and not a legislative act. An
ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and
is, fortunately and unquestionably, subject to the same inhibitions. In those inhibitions, lies the safety of
the people. The debates of the Constituent Assembly (Vol. 8, Part V, Chapter III, pp 201 to 217) would show
that the power to issue ordinances was regarded as a necessary evil. That power was to be used to meet
extra-ordinary situations and not perverted to serve political ends. The Constituent Assembly held forth, as
it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a
fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all
events be made good and the balance struck by the founding fathers between the powers of the
Government and the liberties of the people not disturbed or destroyed.

IV. R. K. Garg v. Union of India, AIR 1981 SC 2138

- Background

On 12th January 1981, both Houses of Parliament not being in session, the President issued the Ordinance
in exercise of the power conferred upon him under Article 123 of the Constitution. The Ordinance was later
replaced by the Act which received the assent of the President on 27th March 1981, but which was
brought into force with retrospective effect from 12th January 1981 being the date of promulgation of the
Ordinance. The Act is a brief piece of legislation with only a few sections but the ascertainment of their
true meaning and legal effect has given rise to considerable controversy between the parties and hence it
is necessary to examine the provisions of the Act in some detail.

The long title of the Act describes it as an Act "to provide for certain immunities to holders of Special
Bearer Bonds 1991 and for certain exemptions from direct taxes in relation to such Bonds and for matters
connected therewith" and the provisions enacted in the Act are preceded by a Preamble which indicates
the object and purpose of the Act in the following words:

Whereas for effective economic and social planning it is necessary to canalise for productive
purposes black money which has become a serious threat to the national economy;

And whereas with a view to such canalisation the Central Government has decided to issue at par
certain bearer bonds to be known as the Special Bearer Bonds, 1991, of the face value of ten
thousand rupees and redemption value, after ten years, of twelve thousand rupees;

And whereas it is expedient to provide for certain immunities and exemptions to render it possible
for persons in possession of black money to invest the same in the said Bonds;

- Contention

The Ordinance is assailed as constitutionally invalid and that the President had no power under Article
123 of the Constitution to issue the Ordinance and the Ordinance is therefore ultra vires and void.

- Issue

There were two limbs of the argument under this head of contention; one was that since the Ordinance
had the effect of amending the tax laws, it was outside the competence of the President under Article 123
and the other was that the subject matter of the Ordinance was in the nature of a Money Bill which could
be introduced only in the House of the People and passed according to the procedure provided in Articles
109 and 110 and the President had therefore no power under Article 123 to issue the Ordinance by-passing
the special procedure provided in Articles 109 and 110 for the passing of a Money Bill.

- Findings
  Nature of the power

6. The Ordinance was issued by the President under Article 123 which is the solitary Article in chapter III
headed "Legislative Powers of the President."

It will be noticed that under this Article legislature power is conferred on the President exerciseable when
both Houses of Parliament are not in session. It is possible that when neither House of Parliament is in
session, a situation may be arise which needs to be dealt with immediately and for which there is no
adequate provision in the existing law and emergent legislation may be necessary to enable the executive
to cope with the situation. What is to be done and how is the problem to be solved in such a case ? Both
Houses of Parliament being in recess, no legislation can be immediately undertaken and if the legislation is
postponed until the House of Parliament meet damage may be caused to public weal. Article 123 therefore
confers powers on the President to promulgate a law by issuing an Ordinance to enable the executive to
deal with the emergent situation which might well include a situation created by a law being declared void
by a Court of law. "Grave public inconvenience would be caused", points out Mr. Seervai in his famous
book on Constitutional Law, if on a statute like the Sales-tax Act being declared void, "no machinery existed
whereby a valid law could be promulgated to take the place of the law declared void". The President is
thus given legislative power to issue an Ordinance and since under our constitutional scheme as
authoritatively expounded by this Court in Shamsher and Anr. v. State of Punjab the President cannot act
except in accordance with the aid and advice of his Council of Ministers, it is really the executive which is
invested with this legislative power.

 Intention of the drafters

Now at first blush it might appear rather unusual and that was the main thrust of the criticism of Mr. R.K.
Garg on this point-that the power to make laws should have been entrusted by the founding fathers of the
Constitution to the executive, because according to the traditional outfit of a democratic political structure,
the legislative power must belong exclusively to the elected representatives of the people and vesting it in
the executive, though responsible to the legislature, would be undemocratic, as it might enable the
executive to abuse this power by securing the passage of an ordinary bill without risking a debate in the
legislature. But if we closely analyse this provision and consider it in all its aspects, it does not appear to be
so startling, though we may point out even if it were, the Court would have to accept it as the expression
of the collective will of the founding fathers. It may be noted, and this was pointed out forcibly by Dr.
Ambedkar while replying to the criticism against the introduction of Article 123 in the Constituent
Assembly-that the legislative power conferred on the President under this Article is not a parallel power of
legislation.

 Checks & balances

It is a power exercisable only when both Houses of Parliament are not in session and it has been conferred
ex-necessitate in order to enable the executive to meet an emergent situation. Moreover, the law made by
the President by issuing an Ordinance is of strictly limited duration. It ceases to operate at the expiration of
six weeks from the reassembly of Parliament or if before the expiration of this period, resolutions
disapproving it are passed by both Houses, upon the passing of the second of those resolutions. This also
affords the clearest indication that the President is invested with this legislative power only in order to
enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament
are not in session. Further more, this power to promulgate an Ordinance conferred on the President is co-
extensive with the power of Parliament to make laws and the President cannot issue an Ordinance which
Parliament cannot enact into a law. It will therefore be seen that legislative power has been conferred on
the executive by the Constitution makers for a necessary purpose and it is hedged in by limitations and
conditions. The conferment of such power may appear to be undemocratic but it is not so, because the
executive is clearly answerable to the legislature and if the President, on the aid and advice of the
executive, promulgates an Ordinance in misuse or abuse of this power, the legislature cannot only pass a
resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive. There is
in the theory of constitutional law complete control of the legislature over the executive, because if the
executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature.
Of course this safeguard against misuse or abuse of power by the executive would dwindle in efficacy and
value according as if the legislative control over the executive diminishes and the executive begins to
dominate the legislature. But nonetheless it is a safeguard which protects the vesting of the legislative
power in the President from the charge of being an undemocratic provision. We might profitably quote
here the words of one of us (Chandrachud, J, as he then was) in the State of Rajasthan v. Union of India
where, repelling the contention of the petitioner that the interpretation which the Union of India was
inviting the Court to place on Article 356 would impair the future of democracy by enabling the Central
Government to supersede a duly elected State Government and to dissolve its legislature without prior
approval of Parliament, the learned Judge said-

...there may be situations in which it is imperative to act expeditiously and recourse to the
parliamentary process may, by reason of the delay involved, impair rather than strengthen the
functioning of democracy. The Constitution has therefore provided safety-valves to meet
extraordinary situations. They have an imperious garb and a repressive content but they are
designed to save, not destroy democracy. The fault, if any, is not in the meeting of the Constitution
but in the working of it.

These words provide a complete answer to the criticism of Mr. R.K. Garg.

 Tax Law & Ordinance-making powers

7. Now once it is accepted that the President has legislative power under Article 123 to promulgate an
ordinance and this legislative power is co-extensive with the power of the Parliament to make laws, it is
difficult to see how any limitation can be read into this legislative power of the President so as to make it
ineffective to alter or amend tax laws. If Parliament can by enacting legislation alter or amend tax laws,
equally can the President do so by issuing an Ordinance under Article 123. There have been, in fact,
numerous instances where the President has issued an Ordinance replacing with retrospective effect a tax
law declared void by the High Court or this Court. Even offences have been created by Ordinance issued by
the President under Article 123 and such offences committed during the life of the Ordinance have been
held to be punishable despite the expiry of the Ordinance. Vide: State of Punjab v. Mohar Singh It may also
be noted that Clause (2) of Article 123 provides in terms clear and explicit that an Ordinance promulgated
under that Article shall have the same force and effect as an Act of Parliament. That there is no qualitative
difference between an ordinance issued by the President and an Act passed by Parliament is also
emphasized by Clause (2) of Article 367 which provides that any reference in the Constitution to Acts or
laws made by Parliament shall be construed as including a reference to an Ordinance made by the
President. We do not therefore think there is any substance in the contention of the petitioner that the
President has no power under Article 123 to issue an Ordinance amending or altering the tax laws and that
the Ordinance was therefore outside the legislative power of the President under that Article.