Constitutional Safeguards against abuse of power to promulgate ordinances

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QuestionThe extraordinary power to make laws through ordinances cannot be used as a substitute for the legislative power of the Parliament. In this context, throw light on the constitutional safeguards against abuse of power to promulgate ordinances.1 November 2021

Answer

Article 123 of the Constitution empowers the President to make ordinances. The scope of the ordinance making power is co-extensive with the legislative powers of the Parliament. Thus, it can be issued on subjects on which Parliament can make laws and is subject to the same constitutional limitations as an Act of Parliament. It empowers the executive to deal with a situation for which the ordinary law-making process cannot be used (since the legislature is not in session).

  • In the Cooper case (1970), the Supreme Court held that an ordinance issued by the President could be subject to judicial review.
  • However, as per the 38th Constitutional Amendment Act 1975, it was provided that the satisfaction of the President would be final and binding and would be beyond judicial review. But this provision was abolished by the 44th Constitutional Amendment. Therefore, the satisfaction of the President can be challenged judicially on grounds of bad faith.
  • In DC Badhwa v State of Bihar, the Supreme Court repeatedly criticized the exercise of ordinance-making power and held that it was a violation of the legislature’s law-making power by the executive. This power should be used in exceptional circumstances and not for political purposes.
  • It was held that the extraordinary power to make laws through ordinances cannot be used as a substitute for the legislative power of the State Legislature.
  • In Krishna Kumar Singh v State of Bihar (2017) also the Supreme Court held that the ordinances issued by the President are subject to judicial review.

Constitutional safeguards against misuse of Article 123 ensure that:

  • This power should be exercised by the President on the advice of his Council of Ministers and not by his personal decision.
  • It is available to the President only when one or more of the Houses of Parliament is not in session.
  • The ordinance must be introduced when the Parliament meets again and if it is not approved by the Parliament earlier, it will cease to have effect after 6 weeks of the re-sitting of the Parliament.

Additionally, the Supreme Court in its judgment on a bunch of petitions on the validity of promulgated and re-promulgated ordinances in Bihar (1989-91) held that re-promulgation of ordinances without the approval of the legislature was constitutionally permissible. It is the culmination of democratic legislative processes, which represent an attempt to go beyond the legislative body.

It further clarified that the satisfaction of the President under Article 123 is not beyond judicial review. In the Cooper case, the Supreme Court was of the view that the satisfaction of the President could be challenged in court on the ground of malice.

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