Ordinance Making Power of the President

Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.
    The ordinance-making power is the most important legislative power of the President. It has been vested in him to deal with unforeseen or urgent matters. But, the exercises of this power is subject to the following four limitations:

1. He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. An ordinance can also be issued when only one House is in session because a law can be passed by both the Houses and not by one House alone. An ordinance made when both the Houses are in session is void. Thus, the power of the President to legislate by ordinance is not a parallel power of legislation.
2. He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action. In Cooper case, (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide. This means that the decision of the President to issue an ordinance can be questioned in a court on the ground that the President has prorogued one House or both Houses of Parliament deliberately with a view to promulgate an ordinance on a controversial subject, so as to bypass the parliamentary decision and thereby circumventing the authority of the Parliament. The 38th Constitutional Amendment Act of 1975 made the President’s satisfaction final and conclusive and beyond judicial review. But, this provision was deleted by the 44th Constitutional Amendment Act of 1978. Thus, the President’s satisfaction is justiciable on the ground of malafide.
3. His ordinance-making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament. This has two implications:

1. An ordinance can be issued only on those subjects on which the Parliament can make laws.
2. An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights.
3. Every ordinance issued by the President during the recess of parliament must be laid before both the Houses of Parliament when it reassembles. If the ordinance is approved by both the Houses, it becomes an act. If Parliament takes no action at all, the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament. The ordinance may also cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament pass resolutions disapproving it. If the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks is calculated from the later of those dates. This means that the maximum life of an ordinance can be six months and six weeks, in case of non-approval by the Parliament (six months being the maximum gap between the two sessions of Parliament). If an ordinance is allowed to lapse without being placed before Parliament, then the acts done and completed under it, before it ceases to operate, remain fully valid and effective.

    The President can also withdraw an ordinance at any time. However, his power of ordinance-making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.

    An ordinance like any other legislation, can be retrospective, that is, it may come into force from a back date. It may modify or repeal any act of Parliament or another ordinance. It can alter or amend a tax law also. However, it cannot be issued to amend the Constitution.

    The ordinance-making power of the President in India is rather unusual and not found in most of the democratic Constitutions of the world including that of USA, and UK. In justification of the ordinance-making power of the President, Dr BR Ambedkar said in the Constituent Assembly that the mechanism of issuing an ordinance has been devised in order to enable the Executive to deal with a situation that may suddenly and immediately arise when the Parliament is not in session. It must be clarified here that the ordinance-making power of the President has no necessary connection with the national emergency envisaged in Article 352. 
       The President can issue an ordinance even when there is no war or external aggression or armed rebellion.

The rules of Lok Sabha require that whenever a bill seeking to replace an ordinance is introduced in the House, a statement explaining the circumstances that had necessitated immediate legislation by ordinance should also be placed before the House.

   So far, no case has gone to the Supreme Court regarding repromulgation of ordinance by the President.
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    But, the judgement of the Supreme Court in the D C Wadhwa case(1987) is highly relevant here. In that case, the court pointed out that between 19671981 the Governor of Bihar promulgated 256 ordinances and all these were kept in force for periods ranging from one to fourteen years by repromulgation from time to time. The court ruled that successive repromulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to violation of the Constitution and the ordinance so repromulgated is liable to be struck down. It held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.