Ordinance Making Power of The President

25-01-2023
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
ORDINANCE MAKING POWER OF

THE PRESIDENT
ATUL KUMAR TIWARI’S CLASS

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INTRODUCTION
• Executive legislation except subordinate legislation is considered as

anathema to the democratic principle
• The British Constitution does not allow it
• Constitutions of countries which had prior connection with Britain- US,
Canada, Australia, and Eire- also do not allow it
• But Constitution of India by Art 123 and 213, confers on the President
and the State Governor respectively, the power to issue ordinance
during the recess of Parliament and the State Legislature
• Feature borrowed from the Govt of India Act, 1935
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JUSTIFICATION FOR ORDINANCE-MAKING POWER

• Situations may arise which may need urgent legislative action
• President is to act on the advice of CoMs, much objection cannot be raised
• Criticism was directed more against the length of time during which an
ordinance would remain in force without parliamentary or legislative
approval
• A K Roy v. Union of India, (1982) I SCC 271, Chandrachud CJ said:
• Neither in England nor in the USA does the executive enjoy anything like the power to
issue ordinances. In India the executive at all times, has resorted to it freely as and
when it considered it necessary to do so. Ordinances which lapsed by efflux of time
were renewed successively by a chain of kindred creations one after another. UOI
passed about 200 ordinances between 1960 and 1980, out of which 19 were
passed in 1980.
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ARTICLE 123 - POWER OF PRESIDENT TO PROMULGATE

ORDINANCES DURING RECESS OF PARLIAMENT
• (1) 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.
• (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of
Parliament, but every such Ordinance—
• (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the
reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both
Houses, upon the passing of the second of those resolutions; and
• (b) may be withdrawn at any time by the President.
• Explanation.--Where the Houses of Parliament are summoned to reassemble on different dates, the period of six
weeks shall be reckoned from the later of those dates for the purposes of this clause.
• (3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this
Constitution be competent to enact, it shall be void.
• [***]_______________________Clause (4) was inserted by the Constitution (Thirty-eighth Amendment) Act,
1975, Section 2 (retrospectively) and omitted by the Constitution (Forty-fourth Amendment) Act, 1978,
Section 16 (w.e.f 20-6-1979).
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CONDITIONS PRECEDENT FOR THE EXERCISE OF THE POWER

• President can legislate by promulgating an ordinance only in exceptional
circumstances
• Two conditions
• (i) Both the Houses should not be in session
• (ii) Satisfaction for the need of the ordinance
• Where one House is in session and one House is not, an ordinance can be issued
• A House is said to be in session when it is neither dissolved or prorogued
• Adjournment by the Speaker/ Chairman of the House does not entitle the President to
promulgate an ordinance because an adjourned House is considered to be in session
 An ordinance my be promulgated just a day or two before the date on which the Parliament is
scheduled to meet
 A House may be prorogued just to enable the President to promulgate an ordinance

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SATISFACTION FOR THE NEED OF THE ORDINANCE

• President should be “satisfied that circumstances exist
which render it necessary for him to take immediate
action”
• President is to be satisfied in constitutional sense and
act on the advice of the CoMs
• This has been clearly stated by the SC in
• RC Cooper v UOI, (1970) I SCC 248
• A K Roy v. Union of India, (1982) I SCC 271

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DURATION OF AN ORDINANCE
• Justification for the ordinance lies in this that the law is immediately needed
and the legislative body is not available to make the law
• Therefore, once the legislative body has the opportunity to convert the
ordinance into a regular legislative enactment, there cannot be any
justification for further continuance of the ordinance
• Art 123(2)- life of an ordinance may come to an end in three possible ways
• It may be withdrawn by the President
• It may be disapproved by Parliament
• It may lapse if it is not ratified by the Parliament within the stipulated period

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ORDINANCES HAS TO BE LAID BEFORE THE HOUSES OF PARLIAMENT
• It ceases to be operative if it is disapproved by passing resolutions to that effect by

Houses of Parliament.
• In the case of Parliament if the resolutions disapproving the ordinance are passed on
different dates, the ordinance becomes inoperative from the latter of the two dates
• Even when resolutions disapproving the ordinance are not passed, the ordinance
automatically lapses after six weeks from the date on which the Houses reassemble
• If the Houses reassemble on different dates, the period of six weeks is to be reckoned
from the latter of two dates
• Since the rule is that six months should not intervene between the last sitting in one session
and the date appointed for its first sitting in the next session, the maximum period for
which an ordinance can remain operative is about 7½ months

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AUTHORITY OF AN ORDINANCE
• Art 123 provides that an ordinance has the same force as an Act of Parliament
• The power of the President to promulgate an ordinance is coextensive with the power of
Parliament to pass law
• President cannot promulgate an ordinance on an item in the State List
• None can transgress the limits imposed by the Fundamental Rights and other relevant
provisions of the Constitution
• Two things not possible:
• President cannot amend the Constitution by an ordinance
• Reason is that amendment of the Constitution is different from and outside the ordinary legislative
process
• President cannot by promulgating an ordinance authorize the withdrawal of moneys from the
Consolidated Fund of India
• Reason is that before an Appropriation Act is passed by the Parliament, the Lok Sabha have to vote the
grants as provided in Arts. 113 &114

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SCOPE FOR JUDICIAL REVIEW

(An ordinance can be impeached on the grounds on which legislation can be impeached)
- Some additional grounds
D.C. Wadhwa v. State of Bihar (1987)I SCC378

• Facts: The State of Bihar adopted a practice of repromulgating the ordinances on a massive scale
from time to time without their provisions being enacted into acts of the legislature. The practice
was that, after the session of the State Legis- lature was prorogued, the same ordinances which
had ceased to operate were repromulgated containing substantially the same provisions almost in
a routine manner. The petitioners challenged the validity of this practice
• SC held that successive re-promulgation of ordinances by the State of Bihar was a colourable
exercise of power and as such a fraud on the Constitution
 The Constitution fixes the maximum duration for which an ordinance can remain operative
 The device of successive repromulgation enables the govt. to evade that limit
 However, the SC is yet to indicate as to how many repromulgations would constitute successive
repromulgation
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IMPROPRIETY, MALA-FIDES OR NON-APPLICATION OF MIND

• If the legislature has the requisite power to legislate, its enactment cannot be bad for having been legislated for ulterior
reasons
• SC has reasoned that the ordinance is issued by the executive head, but the power that he exercises is legislative and not
executive
K. Nagraj v. St. of A.P., (1985) I SCC 523

• the Government of Andhra Pradesh, passed an order stating that in order to provide greater employment opportunities to
the youths it had decided to reduce the age of superannuation of all Government employees, other than those in the last
grade service, from 58 to 55 years with effect from February 28, 1983.
• AP Governor, by an ordinance had reduced the age of retirement of govt. servants from 58 yrs to 55yrs
• Over 18,000 employees and 10,000 public sector employees were superannuated, as a result of the order.
• Petitioners argued that the government had exercised its power arbitrarily without having regard to factors which are
relevant to the fixation of the age of retirement
• Court upheld the validity of the ordinance and decided that an exercise of legislative power could not be impugned on
such grounds as impropriety, mala fides or non-application of mind
• Criticism: President cannot be exactly equated with the Parliament. In the case of collective bodies, like legislative
chambers, pleading mala-fides would be inappropriate

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KRISHNA KUMAR SINGH V. ST OF BIHAR, (2017) 3 SCC 1

(DECIDED ON 02-01-2017 BY 7 JUDGES)

THREE OPINIONS: MADAN B. LOKUR (PARTLY AGREED WITH MAJORITY), T.S. THAKUR,
C.J.I.(CONCURRING), DR. D.Y. CHANDRACHUD+4
• FACTS:
• The Constitution Bench of SC in D.C. Wadhwa v. State of Bihar held that the practice of promulgation and
re-promulgation of ordinances was in disregard of constitutional limitations.
• Three years after the decision, the Governor of Bihar promulgated the first of the Ordinances which is in
issue in the present case, providing for the taking over of four hundred and twenty nine Sanskrit
schools in the state.
• The services of teachers and other employees of the school were to stand transferred to the state
government subject to certain conditions.
• The first Ordinance was followed by a succession of Ordinances. None of the Ordinances were placed
before the state legislature as mandated.
• The state legislature did not enact a law in terms of the Ordinances. The last of them was allowed to
lapse.

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…KRISHNA KUMAR SINGH: FACTS

High Court: Writ proceedings were initiated before the High Court by the staff of the Sanskrit
schools for the payment of salaries.
• The High Court has held that the petitioners before it would be entitled to get
1. their salary which they were getting prior to the promulgation of the Ordinances.
2. their salaries as Government servants from 16.12.1989, the date of coming into force of
Ordinance 32 of 1989 until 30th of April, 1992 when the last Ordinance came to an end.
• Being aggrieved by the decision of the High Court which denies to them the status of Governments
servants after 30th of April, 1992, petitioners filed the appeals to the SC
• the State of Bihar, was aggrieved by the finding of the HC that the staff of Sanskrit Schools
should get salary as Government servants from the date of the first Ordinance till the date of the
expiry of the last Ordinance on 30th of April, 1992. It also filed appeal to the SC
• The State has also objected to the findings of the High Court in relation to "ordinance Raj" in the
State of Bihar and the finding that Ordinances re-promulgated by the State again and again are
illegal.

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KRISHNA KUMAR SINGH :… FACTS
• Supreme Court:
• An appeal against the decision of the High Court came up before a Bench of two judges of
the SC
• both the judges- Justice Sujata Manohar and Justice D.P. Wadhwa -agreed in holding that
all the Ordinances, commencing with the second, were invalid since their promulgation was
contrary to the constitutional position established in the judgment of the Constitution Bench.
• The difference of opinion between the two judges was in their assessment of the
constitutional validity of the first Ordinance; one of them holding that it as invalid while the
other held it to be constitutional.
• When the case came before a Bench of three judges, it was referred to a Bench of five
judges on the ground that it raised substantial questions relating to the Constitution. The
proceedings therein resulted in a reference to a larger Bench of seven Judges.

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MADAN B. LOKUR, J. (PARTLY AGREED WITH MAJORITY)

• DIFFERENT OPINION:
• In his opinion, it is not mandatory Under Article 213(2) of the Constitution to lay an Ordinance
before the Legislative Assembly of the State Legislature, nor would the failure to do so result in the
Ordinance not having the force and effect as an enacted law or being of no consequence
whatsoever.
• As far as the re-promulgation of an Ordinance is concerned, he was of opinion that the re-
promulgation of an Ordinance by the Governor of a State is not per se a fraud on the
Constitution.
• There could be exigencies requiring the re-promulgation of an Ordinance.
• However, re-promulgation of an Ordinance ought not to be a mechanical exercise, and
responsibility rests on the Governor to be satisfied that "circumstances exist which render it
necessary for him to take immediate action" for promulgating or re-promulgating an Ordinance.

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T.S. THAKUR, C.J.I.(CONCURRING)

• Held: re-promulgation of the ordinances was a fraud on the Constitution especially when the
Government of the time appears to have persistently avoided the placement of the ordinances before
the legislature.
• Since the process of issuing the ordinances and re-promulgation thereof was in the nature of a single
transaction and a part of a single series on the same subject, the vice of invalidity attached to any
such exercise of power would not spare the first, second and the third ordinances which would like
the subsequent ordinances be unconstitutional on the same principle.
• He agreed with the concurring views expressed by Lokur and Chandrachud, JJ. that the nature of
power invoked for issuing ordinances does not admit of creation of enduring rights in favour of
those affected by such ordinances.
• He also agreed with the view that the Constitution Bench decision in State of Orissa v. Bhupendra
Kumar Bose and T. Venkata Reddy and Ors. v. State of Andhra Pradesh to the extent the same
extended the theory of "creation of enduring rights" to legislation by ordinances have not been
correctly decided and should stand overruled.
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DR. D.Y. CHANDRACHUD + 04 JJ.

• The power Under Article 123 and 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 has the same force and effect as a law enacted by the legislature but it
must
1. be laid before the legislature; and
2. 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;
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…DR. D.Y. CHANDRACHUD

• 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;
• Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic
legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa;

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…KRISHNA KUMAR SINGH

THE THEORY OF ENDURING RIGHTS NOT VALID
• The theory of enduring rights which has been laid down in the judgment in
• State of Orissa v. Bhupendra Kumar Bose (1962) Supp.(2) SCR 380 and followed in T Venkata
Reddy v. State of Andhra Pradesh (1985) 3 SCC 198 by the Constitution Bench is based on the
analogy of a temporary enactment.
• There is a basic difference between an ordinance and a temporary enactment.
• These decisions of the Constitution Bench which have accepted the notion of enduring rights which
will survive an ordinance which has ceased to operate do not lay down the correct position.
• 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.

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…KRISHNA KUMAR SINGH:

THE TEST OF PUBLIC INTEREST AND CONSTITUTIONAL NECESSITY
• 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;

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…KRISHNA KUMAR SINGH:

THE SATISFACTION OF THE PRESIDENT IS NOT IMMUNE FROM JUDICIAL REVIEW
• The satisfaction of the President Under Article 123 and of the Governor Under
Article 213 is not immune from judicial review
• 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.
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…KRISHNA KUMAR SINGH

THE VERDICT
• The Court held and declared 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, the Court felt it necessary for it to mould the relief 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.

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Ordinance Making Power of The President

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25-01-2023

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY