Constituent Assembly Debate on Ordinance Making Power of the President

In this article, we bring you the important points from the Constituent Assembly debates on the ordinance making power of the President for the IAS exam polity, governance, and law segments.

Constituent Assembly Debate on Ordinance Making Power of the President:- Download PDF Here

CA Debate on Ordinance Making Power of the President

The Constituent Assembly Debate regarding Article 102 was conducted on 23rd May 1949. The said article relates to the president’s power to promulgate an ordinance. The said article is Article 123 of the present Indian Constitution i.e. ‘Power of President to promulgate Ordinances during recess of Parliament.’

Article 102, Draft Constitution, 1948

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

A member proposed an amendment to clause (1) that would restrict the President’s power to make an ordinance to when neither house of the Parliament was in session, as he deemed the existing provision to be very expansive.

  • Dr. Ambedkar, who was the Drafting Committee’s Chairman, gave the counterargument that this would render the power useless as both Houses were required in the enactment of legislation.
  • Therefore, it was essential to permit the President to exercise these ordinance-making powers even if only one House was in session, because then ‘the framework for passing law in the ordinary process does not exist’.
  • “That in clause (1) of Article 102, for the words ‘when both Houses’, the words ‘when one or both Houses’ and for the words ‘such Ordinances’, the words ‘such Ordinance or Ordinances’ be substituted respectively.”
  • The amendment was negative.

To read summaries of other important Constituent Assembly Debates, aspirants can visit the linked article.

Another Constituent Assembly member moved the proposal to amend clause (1) to include the proviso that no ordinance could ‘deprive any citizen of his right to personal liberty except on conviction after trial by a competent court of law’. This proposal was negatived through voting.

  • The member sought to defend this amendment by pointing out the passing of ordinances during British rule, that had subjected people to protracted detention without trial. Citizens ought not to be stripped of their basic fundamental rights even during times of emergencies.
  • In response, Dr.Ambedkar said that clause (3) of the Draft Article already specified that ordinances would be ‘subject to the same limitations as a law made by the legislature by the ordinary process’, that includes the obligation to pass laws which were conforming with Fundamental Rights. Because Draft Article 15 (Article 21) already offered this protection to the people, this amendment was not necessary.
    • (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament assented to by the President, but every such Ordinance – (a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.

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Another member proposed an amendment that mandated ordinances to be placed before Parliament within 4 weeks from the date of the ordinance’s promulgation. This amendment was also negatived.

  • The member contended that when read with Draft Article 69 (Article 85), the effect of this provision would be that there was a likelihood of the ordinance being in effect for up to 7.5 months, which was an extremely long time period. The enforcement of a fixed time frame under which an ordinance would cease to exist/expire was a needed precaution to guard against the exploitation of legislative power.
  • While other members concurred with the rationale provided for this amendment, there was a difference of opinion with respect to the time period.
  • A member suggested that the ordinance should expire 30 days from the date the ordinance was promulgated automatically. The amendment was negatived.

Yet another member made the proposal that the clause should be amended to make sure that an ordinance would be placed before both houses immediately after the Parliament’s reassembly, and also that the amendment would cease to exist unless it is approved by either of the houses.

  • In response, Dr. Ambedkar stated that these amendments did not take into account the emergency situations during which Parliament could not reassemble within the prescribed timeframe under any circumstances.
  • He countered that the ordinance-making power was an emergency power having very limited scope and that there were enough safeguard provisions within the Draft Article and other segments in the Indian Constitution, and these were enough to prevent any misutilization of the provision.

The next amendment moved was – “Every such ordinance shall be laid before both Houses of the Parliament immediately after each House assembles and unless approved by either House of the Parliament by Specific Resolution, shall cease to operate forthwith.” This amendment was negatived in voting.

  • The chief reason for bringing the above-mentioned amendment was to give proper justification to the rule of law. It was appealed that the emergency power mustn’t be granted in an extraordinary manner. It was recommended that the extreme power must not be given to the executive unless the same is approved by the Parliament.

Conclusion

The framers of the Indian Constitution thus assigned special powers i.e. law-making powers to the President at the time when Parliament is not in session. The President of India can exercise this power only at the time of emergency. The President’s power of issuing ordinance at a time of emergency is similar to a law made by the legislature under the ordinary process. None of the laws passed by the legislature under the ordinary process was empowered to deprive citizens of their elementary rights. The same aspect is explicitly applicable to the President’s power of issuing ordinance at the time of emergency.

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