In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court widened the boundaries of judicial review to the extent that it can now examine whether the President or the State Governor was spurred by an “oblique motive” to bypass the legislature and promulgate an ordinance.
In case the apex court concludes that the President or the Governor was influenced by ulterior motives to promulgate the ordinance, such an act by the two constitutional authorities would amount to a fraud on their respective powers, the apex court.
“The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review,”
In light of the decision of the union cabinet to promulgate an Ordinance to uphold provisions of the Representation of People Act, 1951, this blog examines the Ordinance making power of the Executive in India. The Ordinance allows legislators (Members of Parliament and Members of Legislative Assemblies) to retain membership of the legislature even after conviction, if
(a) an appeal against the conviction is filed before a court within 90 days and
(b) the appeal is stayed by the court.
However, the Ordinance will only be promulgated after it receives the assent of the President.
I. Separation of powers between the Legislature, Executive and Judiciary
In India, the central and state legislatures are responsible for law making, the central and state governments are responsible for the implementation of laws and the judiciary (Supreme Court, High Courts and lower courts) interprets these laws.
However, there are several overlaps in the functions and powers of the three institutions. For example, the President has certain legislative and judicial functions and the legislature can delegate some of its functions to the executive in the form of subordinate legislation.
II. Ordinance making powers of the President
Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.[i]
An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists. Thus, the following limitations exist with regard to the Ordinance making power of the executive:
i. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
ii. Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
iii. 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.
III. Ordinance making powers of the Governor
Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session. The powers of the President and the Governor are broadly comparable with respect to Ordinance making. However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill.