Q4. (b) Discuss the Ordinance making power of the President. Can the validity of an Ordinance be challenged in the Court of Law? Cite relevant case-law.
- Core Legal Answer & Context:
Article 123 of the Indian Constitution grants the President the extraordinary power to promulgate Ordinances when both Houses of Parliament are not in session. This power is legislative in nature, allowing the President to make laws that have the same force and effect as an Act of Parliament. The conditions for exercising this power are:
- Parliament (or either House) is not in session.
- The President is satisfied that circumstances exist which render it necessary for him to take immediate action. This 'satisfaction' is crucial. An Ordinance must be laid before both Houses of Parliament when they reassemble. It ceases to operate six weeks from the reassembly of Parliament, or if resolutions disapproving it are passed by both Houses earlier. The President can also withdraw an Ordinance at any time. This power is intended for urgent situations where legislative action is required but Parliament is not available. It is not meant to be a substitute for the regular legislative process.
The validity of an Ordinance can indeed be challenged in a Court of Law. The grounds for challenge typically include: * Lack of 'satisfaction': If the President was not genuinely satisfied that immediate action was necessary, or if the satisfaction was based on mala fide intent or extraneous considerations. * Exceeding constitutional limits: If the Ordinance violates any fundamental rights or other constitutional provisions, or if it attempts to amend the Constitution. * Colorable legislation: If the Ordinance is a mere 'fraud on the Constitution', such as repeated re-promulgation without legislative consideration.
- Relevant Statutes and Sections:
- Article 123: Empowers the President to promulgate Ordinances.
- Article 213: Grants similar ordinance-making power to the Governor of a State.
- Important Landmark Cases:
- R.C. Cooper v. Union of India (1970) (Bank Nationalisation Case): The Supreme Court held that the President's 'satisfaction' under Article 123 is not immune from judicial review. The Court can inquire into whether the circumstances necessitating the Ordinance actually existed and whether the President's power was exercised bona fide.
- D.C. Wadhwa v. State of Bihar (1987): This landmark case severely criticized the practice of re-promulgating ordinances repeatedly without ever placing them before the legislature. The Supreme Court termed this a 'fraud on the Constitution' and a subversion of the democratic process, emphasizing that ordinance-making is an exceptional power, not a parallel source of legislation.
- Krishna Kumar Singh v. State of Bihar (2017): A seven-judge bench of the Supreme Court reaffirmed the principles laid down in D.C. Wadhwa. It held that re-promulgation of ordinances is unconstitutional and a fraud on the Constitution. The Court clarified that the President's satisfaction is justiciable and that an Ordinance cannot be used to bypass legislative scrutiny indefinitely.
- Clear Conclusion: The President's ordinance-making power, while crucial for addressing urgent situations, is an exceptional legislative tool, not a routine one. Its exercise is subject to strict constitutional limitations and robust judicial review to prevent its misuse, ensure accountability, and uphold the supremacy of the Parliament and the democratic legislative process.