A discussion on Ordinance in Indian Constitution which is very important and relevant provision of the Indian Constitution to solve constitutional issues through legislation. It also explains the concepts and provisions associated with the power of the President to promulgate Ordinance under the Indian Constitution.
Article 123 of the Constitution of India contains the powers to promulgate ordinance in Indian Constitution, which reads as under:
123- Power of President to promulgate Ordinances during recess of Parliament
(1) If at any time, except when both the 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 Ordinance as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, 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 reassembly of Parliament, or , if before the expiration of that period resolutions disapproving it are passed by both House, upon the passing of second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation- Where the House of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned form the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact,it shall be void.
Dr Bhimrao Ambdekar, Chairman of the Drafting Committee had argued in justification of the powers to promulgate Ordinance in Indian Constitution which can be quoted as under:
My submission to the House is that it is difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise, What is the executive to do? The executive has got a new situation which it must deal with ex hypothesis. It has not got the power to deal with that in the existing code of law. 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 the law which will enable the executive to deal with that particular situation because it can not resort to the ordinary process of law because, again ex hypothesis, the legislature is not in session. Therefore, it seems to me that fundamentally, there is no objection to the provision contained in Article 123.
The intent and purpose of providing the Ordinance in Indian Constitution through this Article of the Constitution of India was to provide powers to the legislature to handle situations arising out during the recess of the house of the Parliament or some contingent requirements wherein the government wishes to solve the same through immediate legislation.
Some important features related to the said Article enabling Ordinance in Indian Constitution can be listed as under:
i) Ordinance should be promulgated only during the recess of the Parliament or the houses are prorogated or dissolved.
ii) President must be satisfied that circumstances exist which render it necessary for him to issue the Ordinance.
iii) An Ordinance made by the President shall be subject to the same limitations as a law made by Parliament.
iv) Every Ordinance made by the President during the recess of Parliament must be laid before both Houses and it ceases to operate at the expiration of six weeks from the reassembly of Parliament, or if before expiration of that period, resolution disapproving the ordinance are passed by both Houses, the ordinance ceases to operate form the date of the passing of the second of those resolutions. Where the Houses of Parliament are summoned to assemble on different dates, the period of six weeks shall be reckoned from the later of those dates. If the ordinance is allowed to lapse without being placed before the Parliament, it can not be treated as void ab initio and acts done and completed under it before it ceases to operate remain fully valid and effective.
v) Supreme Court has held that the Ordinance making powers are the legislative actions hence the same can not be challenged on the grounds motives or non application mind or on the grounds of its propriety, expediency and necessity. The exercise of these powers can be challenged if it is established that the President has not acted bonafidely.
vi) The Ordinance as issued by the President shall have same force and effect as an Act of Parliament. The Ordinance promulgated by the President is also clothed with all the attributes of an Act carrying with it all its incidents, immunities and limitations under the Constitution.
vii) The Ordinance making powers of the President are peculiar in Indian Constitution amongst all democratic Commonwealth countries.
viii) The powers to promulgate Ordinance are exceptional process of law making and the same can not be used as a substitutive for legislative power of Parliament and the courts have the power to stuck down and invalidate the ordinances which are re-promulgated time and again without being brought before the Parliament as required in clause (2)of Article 123.
The aforesaid provision of the Constitution of India gives sweeping powers to the central government for the time being in the event of any controversy . Government has earlier resorted to the promulgation of Ordinance in very routine manner besides to over reach the judgement passed in famous Shah Bano Case when the Supreme Court ruled for payment of maintenance by the husband to the wife and the central government was not willing to allow the same.
The constitutional safeguard of lapsing the ordinance is the key to the entire provision.