The Difference Between Ordinance Making Power of President and Governor: A Comparative Analysis
The Indian Constitution, in its quest to ensure a smooth and efficient governance, has bestowed upon both the President and the Governors of states the power to promulgate ordinances. This power, however, is not absolute and is subject to certain limitations and constraints. This article delves into the nuances of the ordinance making power, highlighting the key differences between the President and the Governor in their exercise of this authority.
Understanding the Ordinance Making Power
The ordinance making power, enshrined in Article 123 for the President and Article 213 for the Governors, allows them to make laws with the force of law during situations where the Parliament or the state legislature, respectively, is not in session. This power is considered an extraordinary measure, intended to address urgent situations that require immediate legislative action.
Key Features of Ordinance Making Power:
- Emergency Measure: Ordinances are primarily meant to address situations requiring immediate legislative action when the legislature is not in session.
- Temporary Nature: Ordinances are temporary in nature and cease to operate after six weeks of the reassembly of the legislature. This period can be extended by the legislature for a further six weeks.
- Subject to Legislative Scrutiny: Ordinances are subject to the scrutiny of the legislature upon its reassembly. The legislature can either approve, amend, or repeal the ordinance.
- Limited Scope: The ordinance making power is not a substitute for the legislative process. It cannot be used to introduce new policies or to amend the Constitution.
Differences in the Exercise of Ordinance Making Power
While both the President and the Governor possess the power to promulgate ordinances, there are significant differences in their exercise of this power, stemming from their respective constitutional roles and the nature of their jurisdictions.
1. Scope of Application:
- President: The President’s ordinance making power extends to the entire country, covering all subjects listed in the Union List and the Concurrent List.
- Governor: The Governor’s ordinance making power is limited to the state and applies only to subjects listed in the State List and the Concurrent List.
2. Consultation with the Council of Ministers:
- President: The President is bound to act on the advice of the Council of Ministers while promulgating an ordinance. This ensures that the ordinance is in line with the government’s policy and is not used for personal or political gain.
- Governor: The Governor is not bound to act on the advice of the Council of Ministers in the state. However, in practice, the Governor usually consults with the state government before promulgating an ordinance.
3. Judicial Review:
- President: The President’s ordinance making power is subject to judicial review by the Supreme Court. The court can strike down an ordinance if it finds it to be unconstitutional or if it has been misused.
- Governor: The Governor’s ordinance making power is also subject to judicial review by the High Court and the Supreme Court.
4. Legislative Scrutiny:
- President: The President’s ordinance is laid before both houses of Parliament for scrutiny upon their reassembly. The Parliament can either approve, amend, or repeal the ordinance.
- Governor: The Governor’s ordinance is laid before the state legislature for scrutiny upon its reassembly. The state legislature can either approve, amend, or repeal the ordinance.
5. Time Limit for Laying Before the Legislature:
- President: The President’s ordinance must be laid before both houses of Parliament within six weeks of their reassembly.
- Governor: The Governor’s ordinance must be laid before the state legislature within six weeks of its reassembly.
6. Extension of Time Limit:
- President: The Parliament can extend the time limit for the ordinance to remain in force for a further six weeks.
- Governor: The state legislature can extend the time limit for the ordinance to remain in force for a further six weeks.
7. Lapse of Ordinance:
- President: The President’s ordinance lapses if it is not approved by Parliament within six weeks of its reassembly, or if it is not extended for a further six weeks.
- Governor: The Governor’s ordinance lapses if it is not approved by the state legislature within six weeks of its reassembly, or if it is not extended for a further six weeks.
8. Power to Withdraw Ordinance:
- President: The President can withdraw an ordinance at any time.
- Governor: The Governor can withdraw an ordinance at any time.
Table Summarizing Key Differences:
| Feature | President | Governor |
|---|---|---|
| Scope of Application | Entire country (Union List & Concurrent List) | State (State List & Concurrent List) |
| Consultation with Council of Ministers | Bound to act on advice | Not bound, but usually consults |
| Judicial Review | Supreme Court | High Court & Supreme Court |
| Legislative Scrutiny | Parliament | State Legislature |
| Time Limit for Laying Before Legislature | 6 weeks | 6 weeks |
| Extension of Time Limit | Parliament can extend by 6 weeks | State Legislature can extend by 6 weeks |
| Lapse of Ordinance | Lapses if not approved or extended by Parliament | Lapses if not approved or extended by State Legislature |
| Power to Withdraw Ordinance | Can withdraw at any time | Can withdraw at any time |
Instances of Abuse of Ordinance Making Power
The ordinance making power, despite its intended purpose, has been subject to criticism and controversy due to its potential for misuse. There have been instances where the power has been used to bypass the legislative process, to introduce controversial policies, or to circumvent public scrutiny.
- The 2014 Ordinance on Land Acquisition: The then-ruling Congress government promulgated an ordinance to amend the Land Acquisition Act, 2013, which had been passed by Parliament after extensive debate and public consultation. The ordinance was widely criticized for diluting the rights of farmers and for being passed without proper parliamentary scrutiny.
- The 2017 Ordinance on Electoral Bonds: The BJP government promulgated an ordinance to introduce electoral bonds, a system of anonymous political donations. The ordinance was criticized for its potential to facilitate corruption and for undermining transparency in political funding.
These instances highlight the need for caution and transparency in the exercise of the ordinance making power.
Safeguards Against Abuse
To prevent the misuse of the ordinance making power, the Indian Constitution has incorporated several safeguards:
- Judicial Review: The courts have the power to strike down ordinances that are found to be unconstitutional or that have been misused.
- Legislative Scrutiny: The legislature has the power to approve, amend, or repeal ordinances.
- Public Scrutiny: The media and civil society organizations play a crucial role in scrutinizing the use of the ordinance making power and raising public awareness about its potential for abuse.
Conclusion
The ordinance making power is a vital tool for ensuring smooth governance in India. However, it is crucial to ensure that this power is not misused and that it remains a truly exceptional measure, reserved for situations requiring immediate legislative action. The safeguards built into the Constitution, along with the vigilance of the judiciary, the legislature, and the public, are essential for ensuring that the ordinance making power is used responsibly and effectively.
The differences between the President and the Governor in their exercise of this power highlight the federal structure of the Indian Constitution and the division of powers between the Union and the states. Understanding these differences is crucial for appreciating the nuances of Indian governance and for ensuring that the ordinance making power is used in a manner that is consistent with the principles of democracy and the rule of law.
Frequently Asked Questions on the Difference Between Ordinance Making Power of President and Governor:
1. What is the main purpose of the ordinance making power?
The ordinance making power is a temporary measure designed to address urgent situations requiring immediate legislative action when the Parliament or the state legislature is not in session. It allows the President or the Governor to make laws with the force of law until the legislature can convene and address the issue.
2. What are the key differences between the President and Governor’s ordinance making power?
The key differences lie in the scope of application, consultation with the council of ministers, and the legislative body that scrutinizes the ordinance. The President’s power extends to the entire country, while the Governor’s is limited to the state. The President is bound to act on the advice of the Council of Ministers, while the Governor is not. The President’s ordinance is scrutinized by Parliament, while the Governor’s is scrutinized by the state legislature.
3. Can the President or Governor promulgate an ordinance on any subject?
No. The President’s power is limited to subjects listed in the Union List and the Concurrent List, while the Governor’s power is limited to subjects listed in the State List and the Concurrent List. They cannot use this power to introduce new policies or to amend the Constitution.
4. What happens to an ordinance after the legislature reassembles?
The ordinance is laid before the legislature for scrutiny. The legislature can either approve, amend, or repeal the ordinance. If the legislature does not approve the ordinance within six weeks, it lapses.
5. Can the President or Governor withdraw an ordinance?
Yes, both the President and the Governor can withdraw an ordinance at any time.
6. Are there any safeguards against the misuse of the ordinance making power?
Yes, there are several safeguards, including judicial review by the courts, legislative scrutiny by the legislature, and public scrutiny by the media and civil society organizations.
7. What are some examples of instances where the ordinance making power has been misused?
There have been instances where the power has been used to bypass the legislative process, to introduce controversial policies, or to circumvent public scrutiny. Examples include the 2014 ordinance on land acquisition and the 2017 ordinance on electoral bonds.
8. Is the ordinance making power a necessary tool of governance?
While it is a necessary tool for addressing urgent situations, it should be used sparingly and with caution. The potential for misuse necessitates careful scrutiny and transparency in its application.
9. What is the role of the judiciary in relation to the ordinance making power?
The judiciary plays a crucial role in ensuring that the ordinance making power is not misused. The courts have the power to strike down ordinances that are found to be unconstitutional or that have been misused.
10. What is the future of the ordinance making power in India?
The ordinance making power is likely to remain a part of the Indian Constitution. However, there is a growing debate about its potential for misuse and the need for greater transparency and accountability in its application.
Here are some MCQs on the difference between the ordinance making power of the President and Governor:
1. Which of the following statements is TRUE regarding the scope of application of the ordinance making power?
a) The President’s ordinance making power extends to all subjects listed in the Union List, State List, and Concurrent List.
b) The Governor’s ordinance making power extends to all subjects listed in the Union List, State List, and Concurrent List.
c) The President’s ordinance making power is limited to subjects listed in the Union List and the Concurrent List.
d) The Governor’s ordinance making power is limited to subjects listed in the State List and the Concurrent List.
Answer: d) The Governor’s ordinance making power is limited to subjects listed in the State List and the Concurrent List.
2. Which of the following is NOT a safeguard against the misuse of the ordinance making power?
a) Judicial review by the courts
b) Legislative scrutiny by the legislature
c) Public scrutiny by the media and civil society organizations
d) The President’s power to veto an ordinance
Answer: d) The President’s power to veto an ordinance
3. Which of the following statements is TRUE regarding the consultation with the Council of Ministers?
a) The President is not bound to act on the advice of the Council of Ministers.
b) The Governor is bound to act on the advice of the Council of Ministers.
c) The President is bound to act on the advice of the Council of Ministers.
d) The Governor is not bound to act on the advice of the Council of Ministers, but usually consults with them.
Answer: c) The President is bound to act on the advice of the Council of Ministers.
4. Which of the following bodies scrutinizes the President’s ordinance?
a) The Supreme Court
b) The High Court
c) The State Legislature
d) The Parliament
Answer: d) The Parliament
5. Which of the following statements is TRUE regarding the time limit for laying an ordinance before the legislature?
a) The President’s ordinance must be laid before Parliament within 6 weeks of its reassembly.
b) The Governor’s ordinance must be laid before the State Legislature within 6 weeks of its reassembly.
c) Both a) and b) are true.
d) Neither a) nor b) is true.
Answer: c) Both a) and b) are true.
6. Which of the following statements is TRUE regarding the extension of the time limit for an ordinance?
a) The President can extend the time limit for an ordinance for a further 6 weeks.
b) The Governor can extend the time limit for an ordinance for a further 6 weeks.
c) Both a) and b) are true.
d) Neither a) nor b) is true.
Answer: c) Both a) and b) are true.
7. Which of the following instances is NOT an example of the misuse of the ordinance making power?
a) The 2014 ordinance on land acquisition
b) The 2017 ordinance on electoral bonds
c) The 1975 ordinance imposing emergency
d) The 2019 ordinance on the reservation for economically weaker sections
Answer: d) The 2019 ordinance on the reservation for economically weaker sections
8. Which of the following statements is TRUE regarding the lapse of an ordinance?
a) The President’s ordinance lapses if it is not approved by Parliament within 6 weeks of its reassembly.
b) The Governor’s ordinance lapses if it is not approved by the State Legislature within 6 weeks of its reassembly.
c) Both a) and b) are true.
d) Neither a) nor b) is true.
Answer: c) Both a) and b) are true.
These MCQs cover some of the key differences between the ordinance making power of the President and Governor. They are designed to test your understanding of the constitutional provisions and the practical implications of this power.