Sunday, 30 January 2022

Ordinance Power of the President - Manav Puri@LexCliq

                        Ordinance Power of the President 


Article 123 of the Indian Constitution gives the President of India certain legislative powers, that is, to make ordinances when none of the chambers of Parliament are in session, making it impossible for a single chamber to pass and enact a law regardless of the Parliament having the power to legislate, and would have the same restrictions.

Limitations of Power of Ordinance;

  • When the legislature is not in session: The President can only act when neither house of Parliament is in session. 

  • Immediate Action Required: Although the President has the power to make regulations, he can only do so if he is satisfied that circumstances exist that require immediate action. 

  • Parliament's consent: After approval of the decree, Parliament must consent within six weeks of the meeting. She will be hired if one of the chambers refuses her.

The President may revoke an ordinance at any given time. However, he exercises his powers with the consent of the Council of Ministers, headed by the President. The Regulations may apply retrospectively and it may amend or repeal laws or any other regulations, as it can be used to change a tax law, but it can never amend the Constitution.

One of the essential elements to consider when passing an executive order is that the President must be satisfied that circumstances exist that require an immediate Presidential action. The Supreme Court has not yet defined "presidential satisfaction," and even if the president's subjective satisfaction can be questioned before the Court. To clearly clarify this said ambiguity, Indira Gandhi let the Government pass the 38th Constitutional (Amendment) Act, 1975 which has expressly ruled out the subject of the satisfaction of the President outside the purview of Judicial Review. Furthermore, in 44th (Amendment) Act, 1978 it deleted this clause, with a view that the power of President could now be challenged in the Court of Law if it is rooted on a bad faith, corrupted motive or had any mala fide intention.

The power of ordinance basically, attempts to interrupt in the balance between the executive as well as legislative powers by letting them into the element of arbitrariness into the Constitutional System and interrupting with the rule of law. Whenever such an ordinance making power is exercised by an Executive body it expresses ignorance towards the legislature. Till now there are only a few grounds which are established to challenge the validity of the Ordinances – (A) If it comprises of a colorable Legislation, (B) It infringes into any of the guaranteed fundamental rights, (C) It is violative of any Substantive provisions provided in the constitution, (D) If it is unconstitutional or incompatible to constitution.


The only conclusion is that an ordinance is described as the legislative power of the President; however, it is enacted on the advice of the Council of Ministers and is therefore considered to be a law made by the Executive. the Council of Ministers is unconstitutional for violating Article 74(1). The President's satisfaction is actually satisfaction with the Minister's advice, and a President's or Governor's satisfaction must be based on such facts and circumstances as show objectivity even in subjectivity. To ensure that power is not abused by those who hold it, the Supreme Court restricted the government's power to issue regulations. The sanctity of the Constitution rests on the fact that there is a struggle between the three branches of the state in which the principle of democracy will continue to foster positivity.

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