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Ordinance making powers of the Executive in India

Ordinance making powers of the President:

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Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament or both the houses are 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 or both the houses are 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’.

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.

Ordinance making powers of the Governor

Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.

The powers of the President and the Governor are broadly comparable with respect to Ordinance making.  However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill.

Key cases on the President’s Ordinance making power:-

  1. RC Cooper vs.Union of India (1970):-  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; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
  2. DC Wadhwa vs. State of Bihar :-  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.

Note: – In criminal cases, ordinance will not be active retrospectively. For eg- this present ordinance of death penalty in case of child rape will not be applicable in Kathua case as this crime took place before enactment of ordinance.

But in civil case, tax law case, it can be applicable retrospectively i.e. on back date.

Ordinance cant be issued to amend the constitution.

Thank you!

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