Introduction

The President of India is vested with extraordinary powers to promulgate ordinances when either of the Houses of the Parliament is not in session [1]. This power enables the President to take immediate action if circumstances arise for it by establishing as law an ordinance without requiring the approval of the Parliament at the time of its promulgation [2]. However, such a power is easily susceptible to misuse and arbitrary exercise if left unchecked. Therefore, it becomes imperative to examine the scope and limitations of the ordinance making power of the President under Article 123 of the Constitution of India [3].

Scope of Ordinance Making Power of the President

Article 123 of the Constitution empowers the President to promulgate ordinances when either of the Houses of Parliament is not in session if he is satisfied that circumstances exist which render it necessary for him to take immediate action [4]. The President can only promulgate ordinances on matters which the Parliament has the power to legislate under the Constitution [5]. Further, the ordinance must be laid before both the Houses of Parliament when it reassembles [6]. If Parliament approves of the ordinance, it acquires the same force as an Act of Parliament. However, the ordinance will cease to operate six weeks after the reassembly of Parliament if no such approval is given [7].

The scope of the President’s ordinance making power is co-extensive with the legislative powers of Parliament under the Constitution [8]. However, this power is not absolute and is subject to several limitations.

(a)  First, ordinances can only be promulgated when either of the Houses of Parliament is not in session [9].

(b)  Second, there must exist circumstances which necessitate immediate action by the President [10].

(c)  Third, the satisfaction of the President is subject to judicial review on limited grounds [11].

(d)  Fourth, an ordinance must adhere to the provisions of Part III of the Constitution which guarantees fundamental rights to citizens [12].

Judicial Review of an Ordinance Promulgated by the President

The promulgation of ordinances by the President is subject to judicial review on the grounds of mala fide, improper exercise or colorable use of power [13]. In R.C. Cooper v. Union of India [14], the Supreme Court held that the President’s satisfaction can be challenged on the ground of mala fide. It stated that the genuineness of the President’s satisfaction can be questioned by proving mala fide intent and corrupt motives [15].

However, in subsequent cases, the Court has reiterated that the President’s satisfaction cannot be questioned on grounds of propriety, reasonableness or sufficiency [16]. The motive behind issuing an ordinance is also not open to judicial scrutiny [17]. Courts cannot examine whether relevant circumstances existed warranting the promulgation of an ordinance or if the legislature applied its mind before promulgating it [18].

The only grounds on which ordinances can be challenged are if the power was exercised mala fide, improperly or for collateral purposes. If there is no evidence proving bad faith, ordinances cannot be invalidated only on the ground of abuse of power [19]. Courts can also review if appropriate circumstances existed for the exercise of ordinance making power [20].

A.    Violation of Fundamental Rights by an Ordinance

A major ground on which ordinances can be challenged is if they violate fundamental rights under Part III of the Constitution [21]. Article 13 provides that any law inconsistent with fundamental rights shall be void to the extent of inconsistency [22]. The definition of ‘law’ under Article 13 includes ordinances as well [23]. Therefore, if any ordinance violates fundamental rights, it can be declared unconstitutional.

Courts can strike down ordinances as being violative of right to equality under Article 14 [24], right to freedom under Article 19 [25] and right to life and personal liberty under Article 21 [26]. The restrictions imposed must satisfy the test of reasonableness and propriety laid down in various judicial precedents [27]. Hence, citizens have the right to approach the Supreme Court under Article 32 if their fundamental rights are contravened by an ordinance [28].

B.     Procedural Irregularities Amidst Ordinance Promulgation

Ordinances can also be challenged if the established constitutional procedure for their promulgation is not followed [29]. The grounds on which procedural irregularities can be claimed are:

• Ordinance promulgated without aid and advice of Council of Ministers [30].
• Subject matter falls outside legislative competence of Parliament [31].
• Houses of Parliament were in session when ordinance was passed [32].
• Ordinance continues to operate after legislation made on same subject [33].

If the promulgation of an ordinance suffers from any of these procedural flaws, aggrieved persons can approach the Supreme Court for appropriate relief under Article 32 of the Constitution [34].

Maintainability of Challenge Against An Ordinance

A.    Locus standi

Any person whose fundamental rights are violated can challenge the constitutional validity of an ordinance before the Supreme Court [35]. For public interest litigations, the strict rule of locus standi is relaxed [36]. A bona fide petitioner with sufficient interest in the matter can file a writ petition in cases involving public injury [37].

B.     Limitation period

There is no specific limitation period prescribed for filing writ petitions under Article 32. However, they must be filed within a reasonable time from the date of cause of action [38]. Courts can condone delay if sufficient cause is shown by the virtue of an application under Section 5 of the Limitation Act, 1963 [39].

C.    Alternative remedies

The existence of alternative remedies is not an absolute bar for the Supreme Court to exercise writ jurisdiction if fundamental rights are violated [40]. Further, writs can be issued against ordinances if they suffer from lack of legislative competence or violate constitutional provisions [41].

Conclusion

To conclude, the President’s power to promulgate ordinances is not absolute and is subject to judicial review on grounds of mala fide, violation of fundamental rights and procedural irregularities. While the President enjoys immunity under Article 361, the validity of ordinances can still be challenged by filing writ petitions before the Supreme Court. However, such petitions must be filed within a reasonable time by persons having sufficient interest in the matter. The scope for judicial intervention is limited to specified grounds and does not extend to examining the necessity or wisdom behind ordinances. Despite the limitations, the power of judicial review acts as an important check against arbitrary exercise of ordinance making powers by the executive. It upholds the sanctity of fundamental rights and the constitutional scheme of separation of powers.

References

[1] Constitution of India, Article 123, Clause (1)

[2] D.D. Basu, Introduction to the Constitution of India (LexisNexis, 2015) 206.

[3] Constitution of India, Article 123.

[4] Ibid, Article 123, Clause (1).

[5] Durga Das Basu, Commentary on The Constitution of India (LexisNexis, 2015) 3554.

[6] Supra n 1, Article 123, Clause (2).

[7] Ibid, Article 123, Proviso to Clause (2).

[8] State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77.

[9] Supra n 1, Article 123, Clause (1).

[10] Ibid.

[11] R.C. Cooper v. Union of India, (1970) 1 SCC 248; D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378.

[12] Supra n 1, Article 13 read with Part III.

[13] Supra n 11.

[14] Supra n 11.

[15] Ibid.

[16] T. Venkata Reddy v. State of Andhra Pradesh, (1985) 3 SCC 198.

[17] Ibid.

[18] D.D. Basu, Introduction to the Constitution of India (LexisNexis, 2015) 207.

[19] A.K. Roy v. Union of India, (1982) 1 SCC 271.

[20] Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.

[21] Supra n 1, Article 13.

[22] Ibid, Article 13(2).

[23] Ibid, Article 13(3)(a).

[24] Ibid, Article 14.

[25] Ibid, Article 19.

[26] Ibid, Article 21.

[27] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[28] Supra n 1, Article 32.

[29] D.D. Basu, Introduction to the Constitution of India (LexisNexis, 2015) 207.

[30] Ibid.

[31] Supra n 1, Article 123(1) proviso.

[32] D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378.

[33] Ibid.

[34] Supra n 1, Article 32.

[35] Ibid.

[36] S.P. Gupta v. Union of India, AIR 1982 SC 149.

[37] Rural Litigation & Entitlement Kendra v. State of U.P., (1985) 2 SCC 431.

[38] Tridip Kumar Dingal v. State of West Bengal, (2009) 1 SCC 768.

[39] State of Haryana v. Chandra Mani, (1996) 3 SCC 132.

[40] Dwarka Nath v. ITO, AIR 1966 SC 81.

[41] Supra n 29, 207.