Model Answer
0 min readIntroduction
The Ordinance-making power vested in the President of India is a unique and significant provision of the Indian Constitution, enabling the executive to legislate swiftly in situations demanding immediate action. Article 123 of the Constitution grants this power, acting as a temporary substitute for parliamentary legislation. This power, however, is not unfettered and is subject to judicial review. The Ordinance route has been controversial at times, with debates surrounding its frequent use and potential circumvention of parliamentary processes. Understanding its scope, limitations, and judicial scrutiny is vital for comprehending the balance of power within the Indian polity.
The Ordinance-Making Power of the President: A Detailed Overview
Article 123 of the Indian Constitution empowers the President to issue an Ordinance during the recess of the Parliament. This power is an extraordinary measure intended to address urgent situations that require immediate legislative action when Parliament is not in session.
Constitutional Basis and Purpose
- Article 123: Grants the President the power to promulgate Ordinances.
- Purpose: To provide a mechanism for the executive to legislate in situations requiring immediate action and when Parliament is not available.
- Recess of Parliament: The President can issue an Ordinance only during the recess of Parliament, although the definition of "recess" has been debated (discussed later).
Procedure for Issuing an Ordinance
- Proposal by Council of Ministers: The President can issue an Ordinance only on the recommendation of the Council of Ministers. The Ordinance is drafted by the concerned Ministry.
- Presidential Assent: The President can promulgate an Ordinance after considering the recommendation of the Council of Ministers.
- Publication in Gazette: The Ordinance must be published in the Official Gazette.
- Presentation to Parliament: Within six months of reassembling, Parliament must consider the Ordinance and either approve it as a Bill or disapprove it. If Parliament does not approve, the Ordinance ceases to have effect.
Limitations on the Ordinance-Making Power
- Subject Matter: The Ordinance must relate to matters within the legislative competence of Parliament.
- No Power to Create New Institutions: The President cannot create new institutions or alter the fundamental structure of existing ones through an Ordinance.
- No Power to Deal with Private Matters: Ordinances cannot deal with private matters or encroach upon the rights of individuals.
- No Violation of Basic Structure Doctrine: The Ordinance cannot violate the basic structure of the Constitution.
Judicial Review of Ordinances: Can They be Challenged?
The validity of an Ordinance can be challenged in a court of law under Article 226 (High Courts) and Article 32 (Supreme Court). The judiciary plays a crucial role in ensuring that the Ordinance-making power is exercised within constitutional limits.
Landmark Case Laws
- D.C. Wadhwa v. Union of India (1975): This case is a cornerstone in understanding judicial review of Ordinances. The Supreme Court held that Ordinances are laws made in haste and are liable to be struck down if they are malafide, ultra vires, or violate fundamental rights. The court also emphasized the importance of Parliamentary scrutiny of Ordinances. The court highlighted the “principle of prospective overruling,” meaning that Ordinances passed in violation of fundamental rights were void ab initio (from the beginning).
- S.R. Bommai v. Union of India (1994): While primarily dealing with constitutional amendments, this case reaffirmed the power of the judiciary to review executive actions, including Ordinances, to ensure they do not violate the basic structure of the Constitution. This case established the power of the courts to examine the reasons for the President's actions and the Council of Ministers’ recommendations.
- K.R. Narayanan vs. Union of India (1995): This case dealt with the issue of the President acting independently of the Council of Ministers. The Supreme Court held that the President must act on the aid and advice of the Council of Ministers, reinforcing the principle of parliamentary supremacy.
Grounds for Challenging Ordinances
- Malafide Intent: If the Ordinance is issued with a malicious motive to bypass Parliament.
- Ultra Vires: If the Ordinance exceeds the legislative competence of Parliament.
- Violation of Fundamental Rights: If the Ordinance violates the fundamental rights guaranteed under the Constitution.
- Violation of Basic Structure: If the Ordinance damages the basic structure of the Constitution.
Recent Trends and Concerns
There has been a growing concern regarding the increasing use of Ordinances, particularly in recent years, leading to debates about whether it undermines the parliamentary process and weakens democratic institutions. Some argue that frequent reliance on Ordinances can bypass the necessary scrutiny and deliberation that takes place in Parliament.
| Year | Number of Ordinances Promulgated | Notable Ordinances | Concerns Raised |
|---|---|---|---|
| 2020 | 30 | The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 | Bypassing Parliament, lack of consultation |
| 2023 | 10 | The Bharatiya Nyaya Sanhita, 2023 (Ordinance) | Undermining parliamentary process |
Conclusion
The Ordinance-making power of the President is a vital, albeit controversial, provision of the Indian Constitution. While it serves as a crucial mechanism for addressing urgent legislative needs, its frequent use raises concerns about undermining parliamentary supremacy and democratic processes. The judiciary's role in scrutinizing Ordinances through judicial review, as established in cases like *D.C. Wadhwa v. Union of India*, remains essential to safeguarding constitutional principles and ensuring that the power is exercised responsibly. A more judicious use of this power, coupled with enhanced parliamentary oversight, is necessary to maintain the integrity of the legislative process.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.