Ordinance Making Power of the President of India

Ordinance Making Power of the President of India

Article 123(1) of the Indian Constitution empowers the President to promulgate ordinances when both Houses of Parliament are not in session, provided that he is satisfied that immediate action is necessary due to urgent circumstances.

This is a unique legislative authority intended for "unforeseen or urgent" situations. While it gives the President the same force as an Act of Parliament, its scope is strictly defined by specific constitutional conditions and judicial limitations. 

1. Core Scope and Limitations

• Recess of Parliament: An ordinance can only be promulgated when either or both Houses of Parliament are not in session.
• Subject Matter: The power is co-extensive with the legislative power of Parliament; it can only cover subjects on which Parliament is competent to make laws (Lists I and III).
• Non-Discretionary: The President acts only on the written advice of the Union Council of Ministers headed by the Prime Minister.
• Fundamental Rights: An ordinance cannot abridge or take away any of the Fundamental Rights guaranteed under Part III of the Constitution.
• Constitutional Amendments: This power cannot be used to amend the Constitution of India. 

2. Validity and Parliamentary Control

• Temporary Nature: Every ordinance must be laid before both Houses once they reassemble.
• Lifespan: It ceases to operate six weeks after Parliament reassembles, unless approved or disapproved earlier by both Houses.
• Maximum Duration: Given that the maximum gap between two parliamentary sessions is six months, the maximum life of an ordinance is six months and six weeks. 

3. Judicial Review and Landmark Cases

The Supreme Court has established that while the President's "satisfaction" is subjective, it is not immune to judicial scrutiny. 

• R.C. Cooper v. Union of India (1970): Ruled that the President's satisfaction can be challenged if "immediate action" was not actually required or if it was used to bypass legislative debate.
• D.C. Wadhwa v. State of Bihar (1987): Stated that repeated re-promulgation of ordinances without attempting to pass them as laws is a "fraud on the Constitution" and a subversion of the democratic process.
• Krishna Kumar Singh v. State of Bihar (2017): Reiterated that ordinance-making is an exceptional power, and re-promulgation is unconstitutional as it undermines the role of the legislature.
• Current Status: Following the 44th Amendment Act (1978), the President's satisfaction is justiciable on grounds of mala fides (bad faith) or corrupt motives.