President has power to promulgate ordinances:
1. It is constitutional for a President to prorogue a house of the Parliament only for promulgating an ordinance.
2. Ordinance promulgated by the President ceases to operate after six months, unless ratified by the Parliament.
3. President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
Which of the above statements is/are correct?
President has power to promulgate ordinances:
1. It is constitutional for a President to prorogue a house of the Parliament only for promulgating an ordinance.
2. Ordinance promulgated by the President ceases to operate after six months, unless ratified by the Parliament.
3. President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
Which of the above statements is/are correct?
The correct option is A Only 1
Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances related to any subject that the Parliament has the power to legislate on. The ordinance can be effective, for a maximum period of 6 months and 6 weeks.
The following limitations exist with regard to the Ordinance making power of the executive:
- Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
- Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action.
- Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Some key takeaways:
Key debates on the President’s Ordinance making power
(1970) RC Cooper vs. Union of India- In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalize 14 of India’s largest commercial banks, held that the President’s decision 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.
(1975) 38th Constitutional Amendment Act- Inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
(1978) 44th Constitutional Amendment Act- Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance.
(1980) AK Roy vs. Union of India- In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”.
Only 1
Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances related to any subject that the Parliament has the power to legislate on. The ordinance can be effective, for a maximum period of 6 months and 6 weeks.
The following limitations exist with regard to the Ordinance making power of the executive:
- Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
- Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action.
- Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Some key takeaways:
Key debates on the President’s Ordinance making power
(1970) RC Cooper vs. Union of India- In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalize 14 of India’s largest commercial banks, held that the President’s decision 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.
(1975) 38th Constitutional Amendment Act- Inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
(1978) 44th Constitutional Amendment Act- Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for the judicial review of the President’s decision to promulgate an Ordinance.
(1980) AK Roy vs. Union of India- In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President’s decision only when there were substantial grounds to challenge the decision, and not at “every casual and passing challenge”.
