Ordinance Making Power of the President of India

The ordinance-making power is one of the most important legislative powers of the President of India. It allows the executive to take immediate action when Parliament is not in session.

Under Article 123, the President can promulgate an ordinance if:

• Recess of Parliament: Both Houses of Parliament are not in session, or only one House is in session (since a law requires both Houses to pass it).

• Urgency: The President is satisfied that circumstances exist which render it necessary for them to take immediate action.

Nature and Scope

• Same Force as an Act: An ordinance has the same legal force and effect as an Act of Parliament.

• Temporary Duration: Every ordinance must be laid before both Houses of Parliament when they reassemble.

  • It ceases to operate six weeks from the reassembly of Parliament.

  • If Parliament takes no action, the maximum life of an ordinance is six months and six weeks (as the maximum gap between two sessions of Parliament is six months).

• Limitations: The President cannot pass an ordinance on matters where Parliament does not have the power to make laws. It also cannot abridge or take away any Fundamental Rights.

Is an Ordinance subject to Judicial Review?

Yes. The President’s power to promulgate an ordinance is not immune from judicial scrutiny.

Initially, the 38th Constitutional Amendment Act (1975) made the President's "satisfaction" final and beyond judicial review. However, this was deleted by the 44th Amendment Act (1978), restoring the power of the courts.

Key Judicial Precedents:

• Cooper Case (1970): The Supreme Court held that the President’s satisfaction can be challenged in court on the grounds of malafide (bad faith). For instance, if the government bypasses Parliament just to avoid debate.

• D.C. Wadhwa v. State of Bihar (1987): The Court ruled that "re-promulgation" of ordinances (passing the same ordinance repeatedly without trying to get it passed by the legislature) is a fraud on the Constitution and is liable to be struck down.

• Krishna Kumar Singh v. State of Bihar (2017): A seven-judge bench of the Supreme Court clarified that:

  1. The President's power is not an independent source of law-making but is conditional on the necessity of immediate action.

  2. The "satisfaction" of the President is subject to judicial review to ensure it wasn't based on irrelevant or extraneous grounds.

Crucial Distinction: While the Court will not usually question the "adequacy" of the material before the President, it can intervene if it is shown that no "circumstances" existed at all to justify the urgency, or if the power was used for a collateral purpose.