What is an ordinance and who makes it?
- Article 123 of the Indian Constitution grants the President of India to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law.
- Ordinances may relate to any subject that the parliament has the power to make law, and would be having same limitations.
When an ordinance can be issued?
- When legislature is not in session.
- When immediate action is needed: Here the Supreme Court has clarified that the legislative power to issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an emergent situation’.
How parliament exercises control over ordinance making power of President?
- The constitution provides two parliamentary checks vis-a-vis the promulgation of ordinance [Art 123(2) (a)]:
- The power of parliament to pass resolutions disapproving the provisions of the ordinance.
- The automatic expiry of the ordinance within six weeks of the reassembly of the houses of the parliament unless passed by the parliament; this gives a chance for the parliament to debate on the ordinance and review it accordingly.
Ordinance making powers of the Governor
- Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
- The powers of the President and the Governor are broadly comparable with respect to Ordinance making.
- However, the Governor cannot issue an Ordinance without instructions from the President in certain cases where the assent of the President would have been required to pass a similar Bill.
Key debates relating to the Ordinance making powers of the Executive.
- There has been significant debate surrounding the Ordinance making power of the President (and Governor).
- Constitutionally, important issues that have been raised include:
- Judicial review of the Ordinance making powers of the executive;
- The necessity for ‘immediate action’ while promulgating an Ordinance;
- And the granting of Ordinance making powers to the executive, given the principle of separation of powers.
- In 1970, RC Cooper vs.Union of India Case the Supreme Court, held that the President’s decision on Ordinance could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
- In 1980, AK Roy vs.Union of India case the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.