Monday, 31 January 2022

Ordinary Making Power ( Article 123) - By Isha

 Ordinance Making Power (Article123) – By Isha

Article 123 (1) provides: “ 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 immense action, he may promulgate such Ordinances as the circumstances appear to him to require.” An ordinance promulgated by the President has the same force and effect as an Act of the Parliament. The President may withdraw the Ordinance at any time.

The Ordinance promulgated by the President is required to be laid before both Houses of Parliament. It ceases to operate at the expiration of six weeks from the reassembly of Parliament. However, if resolutions disapproving the Ordinance are passed by both the Houses before the expiry of these six weeks shall be reckoned from the date, the latter House meets.

The President may promulgate Ordinances under Article (123) (1), with respect to all those matters with respect to which Parliament is competent to make laws. The power of the President to promulgate Ordinances is thus declared to be co-extensive with the power of the Parliament to make laws. However, the President can promulgate an ordinance only when the following two conditions are existing:

  1. When both Houses of Parliament are not in Session. Thus, he can promulgate the Ordinance when one of the House is in Session.

  2. When circumstances exist which render it necessary for the President to take immediate action.

Ordinances per se are against the spirit of democracy and not conducive to the development of the best Parliamentary traditions. However the issuance of Ordinances has been held desirable to deal with an unforeseen and urgent situation. Justifying the provision in the Constituent Assembly, Dr B.R. Ambedkar said – 

“ The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because... the legislature is not in session”.

Case laws

  1. In R.C. Cooper vs Union of India, the Banking Companies (Aquisition and Transfer of Undertakings) Ordinance, 1969 was challenged on the ground that the President had not satisfied himself as regards to the urgency of the circumstances. The Supreme Court, however held that “ under the Constitution, the President being the constitutional head, normally acts, in all matters, including the promulgation of an Ordinance, on the advice of his Council of Ministers”. The Ordinance is promulgated in the name of the President, but it is, in truth, a promulgation on the advice of his Council of Ministers and on their satisfaction.

It has been held that an Ordinance passes under Article 123 stands on the same footing as an Act passed by the legislature. It cannot be treated as an executive action or an administration decision. The courts cannot infer a legislative malice in passing a statue. It is clothed with all the attributes of an Act of the Legislature, carrying with it all its incidents, immunities and limitations under the Constitution. An ordinance has been held to be a law under Article 21 of the Constitution. As the Legislature can repeal an existing enactment or amend it, so also, the President, by an Ordinance, can repeal or amend an existing legislation. 

  1.  In A.K. Roy vs Union of India, the National Security Ordinance,1980 provided for, detention of persons acting in a manner prejudicial to the defence of India, security of India, security of the State and friendly relations with foreign powers. The Ordinance was challenged on the ground that it suffered from vagueness and arbitrariness. The Supreme Court upheld the constitutional validity of the Ordinance and held that it was not violative of Article 14.

However, the Supreme Court held that Ordinance making power of the President would be subject to the tests of vagueness, arbitrariness, reasonableness, public interest, and that it was passed during the recess of the Union Parliament.

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