Explained: What is the Ordinance making power of the President?

Apart from other executive powers, the Governors and the President have legislative powers with which they can meet certain emergencies. These are laid down separately in two articles of the Constitution that give the President (Article 123) and the Governors (Article 213) the power to promulgate Ordinances when the legislature is not in session. Generally speaking, the power at both levels is the same: Governors and the President, facing the need for ‘immediate action’, may promulgate Ordinances having the force of legislative Acts, but central or state executive must lay Ordinances before the legislature when it reassembles. Unless approved by both houses, the Ordinance expires six weeks after reassembly. The technique of issuing an ordinance has been devised to enable the executive to meet a sudden situation arising in the country when the Parliament is not in session, and which cannot be dealt with under the ordinary law. (Ambedkar, VIII CAD, page 213) The executive does not need to expound the reasons for promulgating an ordinance and a declaration to that effect in the preamble of the ordinance is sufficient. The executive of England or the USA enjoys no such power.

Tracing the History of Ordinances

The power to promulgate Ordinance can be traced back to the Indian Councils Act of 1861. The Act of 1861 (section 23) empowered the Governor-General to issue directions which had the force of law. The power conferred was to issue Ordinances which were subject to two conditions, that, [i] there must be an emergency and [ii] Ordinance will remain in force for not more than 6 months. The same power was retained in the Government of India Act, 1909, and further in the Government of India Act 1935. The most important difference between the power vested under Article 123/213 and those vested in Governor-General and Governors under the 1935 Act is that, under the Constitution, all such actions are subject to ‘legislative ratification’. The actions of President (under Article 123) are subject to approval by a popular assembly to which the union or the state government is collectively responsible. The 1935 Act gave complete discretion to the Governor-General and Governors but under the Constitution, there is no such discretion (as the President and the Governors have to act on the ‘aid and advice’ of the Council of Ministers). 

In the Constituent Assembly, the concern about the time-period of the Ordinance was debated hotly. Pandit Kunzru proposed to reduce the time of the Ordinances as he feared that in a province or at the Union level, Ordinance rule might last for six months, the period that could elapse between sessions of Parliament or provincial legislatures. Dr. Ambedkar replied that since both Parliament and provincial assemblies were obliged by the Constitution to meet twice a year and their sessions would be of some duration, there was little possibility of an Ordinance existing six months before it was scrutinized by the legislature. Also, professor K.T. Shah argued that the introduction of such a provision was “negation of the rule of law” and the heading of the Article must say that it is an “extraordinary power” and not legislative power of the President/Governors. Several other concerns were raised by B Pocker Sahib, H V Kamath, and P S Deshmukh in the assembly, to which Dr. Ambedkar replied—

“it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation has arisen, which it must deal with ex hypothesi it has not got the power to deal with that in the existing code of law. The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because again ex hypothesi the legislature is not in session.”

Finally, the Ordinance provisions little changed from Sir B N Rau’s drafts of May 1947, were adopted and approved in 1949. (Draft can be accessed here)

What are the conditions to pass an Ordinance?

• Pre-Conditions

Before passing an Ordinance, the authority of the Governor/President is conferred upon with two prior conditions—[i] first, the Parliament/legislative assembly must not be in session; [ii] the Governor/President must be ‘satisfied’ of the existence of circumstances rendering it necessary to take immediate actions. According to the judgment in Krishna Kumar Singh v. State of Bihar (2017), Justice DY Chandrachud observed that—

“The existence of circumstances is an objective fact. The Governor (or the President) is required to form a satisfaction of the existence of circumstances which makes it necessary to take immediate action. Necessity is distinguished from mere desirability.” (para 27)

Both these conditions stipulate a constitutional intent to compass the power of the Governor to frame Ordinances within clearly mandated limits. However, it does not make the Governor or the President parallel law-making body, the power is only conferred to be exercised when the conditions are fulfilled (that is when the legislature is not in session to make laws). Adding on to that, under Article 13(3) of the Constitution, an ordinance is a law and it has the same effect and force as a law enacted by the Legislature. An ordinance passed by the Governor/President is subject to same inhibitions to which the legislature is subject to, that is, every law passed by the legislature must align with [i] Part III of the Constitution; [ii] distribution of legislative powers between the Union and the States; and [iii] express constitutional limitations.

Furthermore, there is another condition placed onto the Governors, that is, they may not use their legislative power to circumvent the restrictions on their authority imposed elsewhere in the Constitution. They may not, without instructions from the President, promulgate an Ordinance if the Bill containing the same provisions would have needed presidential sanction before introduction into the state legislature or if the Bill, once enacted, would have had to be reserved for the consideration of the President. 

• Post-Conditions

After the Ordinance is passed, the Constitution makes it mandatory to lay the Ordinance before the legislature as it sub-serves the purpose of legislative control over the Ordinance making power of the executive. The expression used under Article 123 and 213 says that “but every such Ordinance shall be laid before the legislative assembly (or Parliament – in the case of Article 123)”. The Governor or the President does not exercise discretionary powers while promulgating Ordinances, rather they issue it on the aid and advice tendered by the Council of Ministers who are responsible to the Legislature (Article 75 and Article 163). The requirement to lay down the Ordinance before the legislature is not merely a directory but it is mandatory and if not done, it is an infraction of the Constitution. The underlining objective behind laying of an Ordinance, according to Krishna Kumar Singh case, is to enable the legislature to determine “[i] the need and expediency of an Ordinance; [ii] whether a law should be enacted; or [iii] whether the ordinance should be disapproved”.

Furthermore, a statement explaining the circumstances shall be laid down on the table by the Council of Ministers on the first day of commencement and this is necessitated by Rule 71(2) of the Rules of Procedure and Conduct of business in Lok Sabha which states that: 

“75 (2). Whenever an Ordinance, which embodies wholly or partly or with modification the provisions of a bill pending before the House is promulgated a statement explaining the circumstances which had necessitated immediate legislation by Ordinance shall be laid on the table at the commencement of the session following the promulgation of the Ordinance.”

The tabling of Ordinance is necessary and mandatory as it is in the furtherance of the legislature’s supervision and control. Hence, after the promulgation of an ordinance, it must be laid down before the Parliament. 

These were the pre-conditions and conditions after an ordinance is promulgated, and, all the conditions must be fulfilled. 

Promulgation of Ordinance and Judicial Review

Article 123 and 213 speak of the satisfaction of the President/Governors who must act on the ‘aid and advice’ of the Council of Ministers. It is well-settled that the re-promulgation of ordinances in unconstitutional and a fraud on the Constitution. (see Krishna Kumar Singh, page 132 (viii) [and] D.C. Wadhwa v. the State of Bihar) But is the satisfaction of the President or Governors judicially reviewable? 

In 1974, in the case of S.K.G. Sugar Mills v. State of Bihar, the Supreme Court held that the satisfaction of the Governor under Article 213 is not judicially reviewable and held that (para 30)—

“It is however well-settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a justiciable matter.”

But later, the position of the Court changed, and they held that the satisfaction of the President is ‘judicially reviewable’. In the Bank Nationalisation Case (R.C. Cooper v. Union of India), it was argued that the President is not the final arbiter of the existence of conditions in which the power to issue an ordinance may be exercised. But the Court left the question open in 1970. Again, in the case of A.K. Roy v. Union of India, the Court left the question open whether the satisfaction of the President under Article 123(1) is justiciable or not. But the Court did however say it was arguable that “judicial review is not excluded in regard to the question relating to the President’s satisfaction”. In the instant case (A.K Roy case), since the ordinance in question had been replaced by an Act of Parliament, the Court felt no need to go into the question of the President’s satisfaction to issue the ordinance in question. 

In 1975, clause 4 was added to Article 123 by the Constitution (Thirty-eighth Amendment) Act, 1975 to make the satisfaction of the President final and conclusion and beyond Judicial Review. But this clause was omitted in 1978 by the Constitution (Forty-fourth Amendment) Act. Now, what is the settled position of law?  

After the 44th Amendment Act, the Supreme Court in the case of State of Rajasthan v. Union of India (1977, para 27) held that there is “no doubt [after 44th amendment], that judicial review is not totally excluded in regard to the question relating to the President satisfaction”. Further, 7 judge-bench in Krishna Kumar Singh applied the principles which emerged in the case of S.R. Bommai v. Union of India (1993) and held that “the satisfaction of the President under Article 123(1) or of the Governor under Article 213(1) is not immune from judicial review” and further in para 40, the bench held—

“In exercising the power of judicial review, the court must be mindful both of its inherent limitations as well as of the entrustment of the power to the head of the executive who acts on the aid and advice of the Council of Ministers owing collective responsibility to the elected legislature.” 

However, after analyzing various cases, it could be understood that Presidential Satisfaction is not immune from judicial review.  

Conclusion

Thus, after the judgment of Krishna Kumar Singh v. State of Bihar [seven judge bench, 2017], the law concerning conditions required to be fulfilled while promulgating an ordinance and judicial review of ordinances is well-settled.