Ordinances – Indian Constitution

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D.C. Wadhwa v. State of Bihar

  • These writ petitions have been filed by four petitioners challenging the practice of the State of Bihar in promulgating and repromulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (r) Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983, (ii) The Bihar Intermediate Education Council Third Ordinance, 1983, and (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983
  • Question is, can the Governor go on re-promulgating ordinances for an indefinite period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 only for the purpose of enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legislature are not in session
  • The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the resolution of the Legislature before the expiry of that period. The power to promulgate an Ordinance is essentially a power to be used to meet an extra-ordinary situation and it cannot be allowed to be perverted to serve political ends.
  • The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law- making function of the Legislature. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the            law- making function of the Legislature. That would   be clearly subverting the democratic process which lies at the core of our constitutional scheme…The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued.
  • Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation…We must accordingly strike down the Bihar Intermediate Education Council Ordinance, 1983 which is still in opera- tion as unconstitutional and void.

AK Roy v. Union of India

  • CHANDRACHUD, C.J. This is a group of Writ Petitions under Article 32 of the Constitution challenging the validity of the National Security ordinance, 2 of 1980, and certain provisions of the National Security Act, 65 of 1980, which replaced the ordinance. Writ Petition No. 5724 of 1980 is by Shri A. K. Roy, a Marxist member of the Parliament, who was detained under the ordinance by an order passed by the District Magistrate, Dhanbad, on the ground that he was indulging in activities which were prejudicial to public order. Ten members of the Parliament, one an Independent and the others belonging to various political parties in opposition applied for permission to intervene in the Writ Petition on the ground that since the ordinance-making power of the President is destructive of the system of Parliamentary democracy, it is necessary to define the scope of that power. We allowed the intervention…The National Security ordinance, 1980, was passed in order “to provide for preventive detention in certain cases end for matters connected therewith”…The Parliament was not      in session when it was promulgated and its preamble recites that it was being issued because the “President is satisfied that circumstances exist which render it necessary for him to take immediate action”
  • …while setting out the petitioner s case, the thrust of his argument is that the power to issue an ordinance is Dan executive power, not a legislative power, and consequently, is not law. In view of the clear and specific provisions of the Constitution bearing upon this question, it is quite impossible to accept this argument. The heading of Chapter III of Part V is “Legislative Powers of the President”. Clause (2) of Article 123 provides that an ordinance promulgated under Article 123 “shall have the same force and effect as an Act of Parliament”. The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason of sub clause (a) of clause (2), ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period.
  • It is clear from this provision, if indeed there was any doubt about the true position, that the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President. Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power. It may sound strange at first blush that the executive should possess legislative powers, but a careful look at our Constitution will show that the scheme adopted by it envisages the exercise of legislative powers by the executive in stated circumstances. An ordinance can be issued by the President provided that both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render It necessary for him to take immediate action An ordinance which satisfies these pre-conditions has the same force and effect as an Act of Parliament.

R.K. Garg. v. Union of India

  • These writ petitions raise a common question of law relating to the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 (hereinafter referred to as the Ordinance)…we may now proceed to consider the challenge against the constitutional validity of the Ordinance on the ground that the President had no power to issue the Ordinance under Article 123 of the Constitution. There were two limbs of the argument under this head of challenge; one was that since the Ordinance had the effect of amending the tax laws, it was outside the competence of the President under Article 123 and the other was that the subject matter of the Ordinance was in the nature of a Money Bill which could be introduced only in the House of the People and passed according to the procedure provided in Articles 109 and 110 and the President had therefore no power under Article 123 to issue the Ordinance by-passing the special procedure provided in Articles 109 and 110 for the passing of a Money Bill. There is, as we shall presently point out, no force in either of these two contentions, but we may point out straightaway that both these contentions are academic, since the Act has been brought into force with effect from the date of promulgation of the Ordinance
  • It may be noted, and this was pointed out forcibly by Dr. Ambedkar while replying to the criticism against the introduction of Article 123 in the Constituent Assembly-that the legislative power conferred on the President under this Article is not a parallel power of legislation. It is a power exercisable only when both Houses of Parliament are not in session and it has been conferred ex-necessitate in order to enable the executive to meet an emergent situation. Moreover, the law made by the President by issuing an Ordinance is of strictly limited duration. It ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of this period, resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions. This also affords the clearest indication that the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session. Further more, this power to promulgate an Ordinance conferred on the President is co-extensive with the power of Parliament to make laws and the President cannot issue an Ordinance which Parliament cannot enact into a law. It will therefore be seen that legislative power has been conferred on the executive by the Constitution makers for a necessary purpose and it is hedged in by limitations and conditions. The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature cannot only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive.

Now once it is accepted that the President has legislative power under Article 123 to promulgate an ordinance and this legislative power is co-extensive with the power of the Parliament to make laws, it is difficult to see how any limitation can be read into this legislative power of the President so as to make it ineffective to alter or amend tax laws. If Parliament can by enacting legislation alter or amend tax laws, equally can the President do so by issuing an Ordinance under Article 123. There have been, in fact, numerous instances where the President has issued an Ordinance replacing with retrospective effect a tax law declared void by the High Court or this Court. Even offences have been created by Ordinance issued by the President under Article 123 and such offences committed during the life of the Ordinance have been held to be punishable despite the expiry of the Ordinance.

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