The Ordinance Making Power of the President: A Balancing Act Between Executive Authority and Legislative Supremacy
The President of India, as the head of state, holds a unique position in the Indian political system. While primarily a ceremonial figure, the President also possesses certain executive powers, including the power to promulgate ordinances. This power, enshrined in Article 123 of the Constitution, allows the President to issue ordinances, which have the same force and effect as an Act of Parliament. However, this power is not absolute and is subject to various limitations and checks. This article delves into the intricacies of the President’s ordinance-making power, exploring its historical context, constitutional framework, limitations, and the ongoing debate surrounding its use.
Historical Context and Evolution of the Ordinance Power
The concept of ordinance-making power finds its roots in the British colonial era. The Government of India Act, 1935, granted the Governor-General the power to issue ordinances in exceptional circumstances. This power was inherited by the Indian Constitution, with Article 123 mirroring the provisions of the 1935 Act.
The framers of the Constitution recognized the need for a mechanism to address urgent situations where Parliament was not in session. The ordinance power was intended to be a temporary measure, allowing the executive to take immediate action in cases of public emergency or unforeseen circumstances. However, the use of this power has been subject to debate and controversy over the years, raising concerns about its potential for abuse and undermining the principle of legislative supremacy.
Constitutional Framework of the Ordinance Making Power
Article 123 of the Constitution outlines the President’s ordinance-making power, stating:
“If the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate Ordinances, during the recess of Parliament, for the peace, order and good government of India.”
This provision grants the President the power to issue ordinances when Parliament is not in session. The ordinance must be laid before both Houses of Parliament within six weeks of its reassembly. If either House disapproves of the ordinance, it ceases to operate.
Table 1: Key Features of the Ordinance Making Power
| Feature | Description |
|---|---|
| Purpose | To address urgent situations when Parliament is not in session |
| Scope | Can be issued for the peace, order, and good government of India |
| Validity | Operates as an Act of Parliament until disapproved by Parliament |
| Duration | Valid for six weeks after reassembly of Parliament |
| Laying before Parliament | Must be laid before both Houses within six weeks of reassembly |
| Disapproval | Can be disapproved by either House of Parliament |
Limitations on the Ordinance Making Power
While the President has the power to promulgate ordinances, this power is not absolute and is subject to several limitations:
- Necessity: The President can only issue an ordinance if “circumstances exist which render it necessary for him to take immediate action.” This requirement emphasizes the exceptional nature of the power and its intended use only in urgent situations.
- Parliamentary Approval: The ordinance must be laid before Parliament within six weeks of its reassembly. If either House disapproves of the ordinance, it ceases to operate. This provision ensures parliamentary oversight and prevents the executive from bypassing the legislative process.
- Subject Matter: The ordinance can only be issued for matters related to the “peace, order and good government of India.” This limitation prevents the President from using the power for personal or political gain.
- Judicial Review: The Supreme Court has the power to review the validity of ordinances, ensuring that they are not used arbitrarily or in violation of the Constitution.
The Debate Surrounding the Ordinance Making Power
The use of the ordinance power has been a subject of debate and controversy in India. Critics argue that the power is often misused, with governments resorting to ordinances to bypass parliamentary scrutiny and push through controversial legislation. They point to instances where ordinances have been used to introduce significant changes in law without proper debate and public consultation.
Table 2: Arguments for and Against the Ordinance Making Power
| Argument | For | Against |
|---|---|---|
| Necessity | Allows for immediate action in urgent situations | Can be used to bypass parliamentary scrutiny |
| Parliamentary Oversight | Subject to parliamentary approval | Can be used to circumvent the legislative process |
| Judicial Review | Subject to judicial review | Can be used to introduce controversial legislation without proper debate |
| Transparency | Limited public consultation | Can be used to benefit the ruling party |
Proponents of the ordinance power argue that it is a necessary tool for the executive to address urgent situations. They point to instances where ordinances have been used effectively to deal with natural disasters, economic crises, and other emergencies. They also argue that the power is subject to sufficient safeguards, including parliamentary approval and judicial review.
Recent Controversies and Judicial Interventions
In recent years, there have been several instances where the use of the ordinance power has sparked controversy. The most notable example is the 2013 ordinance on convicted lawmakers, which was struck down by the Supreme Court. This case highlighted the potential for abuse of the ordinance power and the need for greater transparency and accountability.
The Supreme Court has also intervened in other cases involving ordinances, emphasizing the need for the power to be used sparingly and only in exceptional circumstances. In the case of D.C. Wadhwa v. State of Bihar (1987), the court held that the ordinance power should not be used to circumvent the legislative process.
Recommendations for Reform
The debate surrounding the ordinance power highlights the need for reforms to ensure its responsible use. Some recommendations for reform include:
- Stricter Guidelines: The government should issue stricter guidelines for the use of the ordinance power, specifying the circumstances under which it can be invoked.
- Increased Transparency: The process of issuing ordinances should be made more transparent, with greater public consultation and parliamentary scrutiny.
- Time Limit: The validity of ordinances should be limited to a shorter period, such as three months, to prevent their prolonged use.
- Parliamentary Scrutiny: The process of parliamentary approval should be strengthened, with a requirement for a special majority or a debate in both Houses.
Conclusion
The ordinance-making power of the President is a complex and controversial issue. While intended to be a temporary measure for addressing urgent situations, its use has been subject to debate and criticism. The potential for abuse and the need for greater transparency and accountability have led to calls for reform. The ongoing debate surrounding the ordinance power reflects the delicate balance between executive authority and legislative supremacy in the Indian political system. Finding the right balance between the need for swift action and the principle of parliamentary democracy remains a crucial challenge for the Indian government.
Frequently Asked Questions on the Ordinance Making Power of the President
Here are some frequently asked questions regarding the President’s ordinance-making power in India:
1. What is the Ordinance Making Power of the President?
The Ordinance Making Power is a constitutional provision that allows the President of India to issue ordinances, which have the same force and effect as an Act of Parliament, when Parliament is not in session. This power is enshrined in Article 123 of the Indian Constitution.
2. Why does the President have this power?
The framers of the Constitution recognized the need for a mechanism to address urgent situations where Parliament was not in session. The ordinance power was intended to be a temporary measure, allowing the executive to take immediate action in cases of public emergency or unforeseen circumstances.
3. What are the limitations on the President’s Ordinance Making Power?
The President’s power to issue ordinances is subject to several limitations:
- Necessity: The President can only issue an ordinance if “circumstances exist which render it necessary for him to take immediate action.”
- Parliamentary Approval: The ordinance must be laid before Parliament within six weeks of its reassembly. If either House disapproves of the ordinance, it ceases to operate.
- Subject Matter: The ordinance can only be issued for matters related to the “peace, order and good government of India.”
- Judicial Review: The Supreme Court has the power to review the validity of ordinances, ensuring that they are not used arbitrarily or in violation of the Constitution.
4. What are the arguments for and against the Ordinance Making Power?
Arguments for:
- Allows for immediate action in urgent situations.
- Subject to parliamentary approval and judicial review.
- Can be used effectively to deal with emergencies.
Arguments against:
- Can be used to bypass parliamentary scrutiny.
- Can be used to introduce controversial legislation without proper debate.
- Can be used to benefit the ruling party.
5. What are some recent controversies surrounding the Ordinance Making Power?
In recent years, there have been several instances where the use of the ordinance power has sparked controversy. The most notable example is the 2013 ordinance on convicted lawmakers, which was struck down by the Supreme Court. This case highlighted the potential for abuse of the ordinance power and the need for greater transparency and accountability.
6. What are some recommendations for reform of the Ordinance Making Power?
- Stricter Guidelines: The government should issue stricter guidelines for the use of the ordinance power, specifying the circumstances under which it can be invoked.
- Increased Transparency: The process of issuing ordinances should be made more transparent, with greater public consultation and parliamentary scrutiny.
- Time Limit: The validity of ordinances should be limited to a shorter period, such as three months, to prevent their prolonged use.
- Parliamentary Scrutiny: The process of parliamentary approval should be strengthened, with a requirement for a special majority or a debate in both Houses.
7. What is the role of the Supreme Court in relation to the Ordinance Making Power?
The Supreme Court has the power to review the validity of ordinances, ensuring that they are not used arbitrarily or in violation of the Constitution. The court has also intervened in cases involving ordinances, emphasizing the need for the power to be used sparingly and only in exceptional circumstances.
8. How does the Ordinance Making Power affect the principle of legislative supremacy?
The ordinance-making power raises concerns about the principle of legislative supremacy, as it allows the executive to make laws without the direct involvement of Parliament. However, the limitations on the power, including parliamentary approval and judicial review, aim to ensure that the executive does not abuse this power and that the principle of legislative supremacy is upheld.
Here are some multiple-choice questions (MCQs) on the Ordinance Making Power of the President, with four options each:
1. Which article of the Indian Constitution grants the President the power to issue ordinances?
a) Article 110
b) Article 123
c) Article 143
d) Article 356
Answer: b) Article 123
2. Under what circumstances can the President issue an ordinance?
a) When the President feels it is necessary for the good of the country.
b) When Parliament is in session and unable to pass a law quickly.
c) When Parliament is not in session and the President deems it necessary for immediate action.
d) When the Prime Minister requests the President to issue an ordinance.
Answer: c) When Parliament is not in session and the President deems it necessary for immediate action.
3. What is the maximum duration for which an ordinance can remain in effect?
a) 6 months
b) 1 year
c) 6 weeks after the reassembly of Parliament
d) Until the President decides to revoke it
Answer: c) 6 weeks after the reassembly of Parliament
4. Which of the following is NOT a limitation on the President’s ordinance-making power?
a) The ordinance must be laid before Parliament for approval.
b) The ordinance can only be issued for matters related to the “peace, order and good government of India.”
c) The President can issue an ordinance even if Parliament is in session.
d) The Supreme Court can review the validity of an ordinance.
Answer: c) The President can issue an ordinance even if Parliament is in session.
5. Which of the following statements is TRUE regarding the ordinance-making power?
a) It is a permanent power that can be used at any time.
b) It is a temporary power intended for urgent situations.
c) It is a power that can be used to bypass the legislative process entirely.
d) It is a power that is rarely used in practice.
Answer: b) It is a temporary power intended for urgent situations.
6. What is the primary concern regarding the use of the ordinance-making power?
a) It gives too much power to the President.
b) It can be used to bypass parliamentary scrutiny and public debate.
c) It is not a very effective way of making laws.
d) It is too difficult to use in practice.
Answer: b) It can be used to bypass parliamentary scrutiny and public debate.
7. Which of the following is an example of a recent controversy surrounding the ordinance-making power?
a) The 2013 ordinance on convicted lawmakers.
b) The 2016 ordinance on demonetization.
c) The 2019 ordinance on the Citizenship Amendment Act.
d) All of the above.
Answer: d) All of the above.
8. What is the role of the Supreme Court in relation to the ordinance-making power?
a) The Supreme Court can issue ordinances.
b) The Supreme Court can approve or disapprove ordinances.
c) The Supreme Court can review the validity of ordinances.
d) The Supreme Court has no role in relation to the ordinance-making power.
Answer: c) The Supreme Court can review the validity of ordinances.