History of Ordinances

Ordinances were included in the Constitution of India from Government of India Act,
1935, which gave the authority to the Governor General to promulgate Ordinances.
Section 42 and 43 of the said act dealt with Ordinance making power of the Governor
General which states that, ‘If circumstances exist which render it necessary for him to
take immediate action’, then only he can use this power.

There were massive discussion and debates related to the Ordinance making power,
some of the members of the Constituent Assembly emphasized that this power of
President is against the constitutional morality and was extra-ordinary in nature, some
argued that it should be left as a provision which should be used during emergencies
only.

Ordinance making power of the President

Article 123 of the Indian Constitution grants the President of India certain Law
making powers i.e. to Promulgate Ordinances when either of the two Houses of the
Parliament is not in session which makes it impossible for a single House to pass and
enact a law. Ordinances may relate to any subject that the parliament has the power
to make law, and would be having same limitations. Thus, the following limitations
exist:-

 When legislature is not in session: the President can only promulgate when either of
the House of Parliament is not in session.
 Immediate action is needed: the President though has the power of promulgating the
ordinances but same cannot be done unless he is satisfied that there are circumstances
that require him to take immediate action.
 Parliament should approve: after the ordinance has been passed it is required to be
approved by the parliament within six weeks of reassembling. The same will cease to
operate if disapproved by either House.
The President may withdraw an ordinance at any time. However he exercises his
power with the consent of the Council of Ministers headed by the President. The
Ordinances may have retrospective effect and may modify or repeal any act of
parliament or other ordinances. It may be used to amend a tax law but it can never
amend the Constitution.

Ordinances promulgated from year 1950- 2008, are overwhelming in the areas of
Finance (129 in number), Labor (46), commerce & Industry (28), Home Affair (102)
and Law and Justice (29). Out of these a very few of them can be classified under
actual emergencies, and hence necessary as a constitutional obligation.

While the number of Ordinances issued under the supervision of first, second, third
and fourth Lok Sabha which was 39, 20, 31, and 34 respectively. The ordinances
promulgated increased thrice in the Fifth Lok Sabha, ie. 93 Ordinances were
promulgated.

The up-going trend was reversed by the Janta Dal which during their three year term
of governance promulgated only 34 Ordinances from 1977-1979. The next two
governments had promulgated an average number of 10 Ordinances per year. The
Narasimha Rao Government from year 1991-1996 had promulgated an average of 21
ordinances per year and none of the ordinance had ever dealt with either the
corruption scam or with the prevailing political instability. In fact none of them were
re-introduced as Bill in the parliament. The National Democratic Alliance (NDA)
Government from year 1998-2004 had promulgated an average of 14.6 Ordinances
per year and later the UPA Government from year 2004-2009 had promulgated an
average of 6.8 Ordinances per year.

Satisfaction of the President

One of the essentials to be kept in mind while passing an ordinance is that the
President should be satisfied; that circumstances exist that requires immediate actions
on part of the President. The apex court has not yet defined ‘satisfaction of the
President’ and even whether the subjective satisfaction of the President can be
questioned in the Court of Law. To clearly clarify the said ambiguity, Indira Gandhi led
Government passed the 38th Constitutional (Amendment) Act, 1975 which has
expressly excluded the subjective satisfaction of the President outside the purview of
Judicial Review. Further in 44th (Amendment) Act, 1978 deleted this clause, holding
that the power of President could be challenged in the Court of Law if it is based on
bad faith, corrupt motive or had any mala fide intention.

In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held
that the subjective satisfaction of the President is not completely non-justiciable. Later
in case of Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex
court over ruled its own decision and held that the Satisfaction of the President cannot
be called in question in the Court of law and is out of Judicial Review.

About 615 Ordinances were issued between the years 1952 to 2006, and out of it only
1 can be reasonably justiciable, which was introduced by the Prime Minister Moraji
Desai in 1978- where the currency notes in denominations of Rs.1000/5000/10,000
were demonetized-the reason given was Parliament was not in session and it had to
be done without letting people to know about it, and it was one way to deal with
corruption and inflation. If people had known about it, the same thing would have
been completely failed.

Out of 615 Ordinances, an average of 214 Ordinances were promulgated just 15 days
before the Parliament was supposed to be in session while 261 were promulgated
within 15 days, when Parliament was ending its session. One of the most outrageous
moves was Indira Gandhi’s move to nationalize Banks through an Ordinance issued by
her.

Important Cases
In the case of R.C. Copper v. Union of India[1], constitution validity of the Twenty-
fifth Amendment Act, 1971 was challenged which curtailed the right of property of an
individual and permitted the acquisition of the same by the government for the public
use, on the payment of compensation which has to be determined by the Parliament
and not by the court of law. So in the said case popularly known as Bank
Nationalization case, the Apex court while examining the constitutionality of Banking
Companies Ordinance, 1969 which had sought to nationalize 14 commercial banks in
India, it was held that President decision can be challenged on the ground that no
‘immediate action’ was required on his part.

In the case of A.K. Roy v. Union of India[2], the Supreme Court while examining the
constitutionality of the National Security Ordinance, 1980 which was issued to provide
for preventive detention in certain cases, the Supreme Court argued that the
President’s power of making Ordinances is not beyond the Judicial Review of the
court. However, the Court was unable to explore the issues of the case further as the
ordinance of the President was replaced by an Act. The court also pointed out the
need to exercise judicial review over the President’s decision only at substantial
grounds and not otherwise at every ‘casual challenge’.

In the case of S.K.G.Sugar Ltd v. State of Bihar[3], it was held that promulgating of
an Ordinance by the Governor is purely upon the Subjective Satisfaction of him and
he is the sole Judge to consider the necessity to issue the Ordinance and “his
satisfaction is not a justiciable matter”.

In the case of T. Venkata Reddy v. State of Andhra Pradesh[4], the petitioner

challenged the constitutional validity of the Andhra Pradesh Abolition of Posts of Part-
time Village Officers Ordinances, 1984. One of the grounds was that the Ordinance is
void on account of the lack of mind used by the Governor and from the
commencement of the same the state legislature was disapproving it. The ordinance is
said to take effect as soon as it is promulgated by the President and ceases to operate
by the legislative act.

One of the questions which were raised in the above mentioned case by the court
was: “whether the validity of an Ordinance passed can be tested upon the similar
grounds as to those on which an executive or judicial action is tested”. In answering
the question the Supreme Court cited its own earlier judgment given in K.Nagaraj v.
State of Karnataka[5], and held that the Power of making Ordinances is a legislative
action so the same grounds as related to the law making should be challenged than
challenging the executive or judicial grounds.

Further in the case of S.R. Bommai v. Union of India[6], in this case the scope of
Judicial Review was expanded as to where the court told that where the action by the
President is taken without the relevant materials, the same would be falling under the
category of “obviously perverse” and the action would be considered to be in bad
faith. The Supreme Court held that the exercise of power by the President under the
Article 356(1) to issue proclamation is Justiciable and subject to Judicial Review to
challenge on the ground of mala fide.

In case of State of Orissa v. Bhupendra Kumar Bose[7], the court held that the rights
and obligations which are created by the Ordinance came into effect as soon as the
Ordinance is promulgated and the same cannot be extinguished until a proper
legislature by a legislative body extinguishes those rights and obligations of the
Ordinances. However, where the Ordinances promulgated is an abuse of power and a
kind of Fraud on the constitution, then, the state prevailing with such promulgation
should immediately revive.

An ordinance would be made open to challenge on the following grounds:

1. It constitutes colorable legislation; or

2. It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
3. It is violative of substantive provisions of Our Constitution such as an Article 301; or
4. Its retrospectively is unconstitutional.

Ordinances are however framed by the executive body which is said to be a single,
unified entity. The President is the head of the executive body who promulgate
ordinances on the advice of the council of ministers. The most important requirement
of the promulgation of the ordinances is the ‘necessity to take the immediate action’.
Then there will be no difficulty in ascertaining the satisfaction of the President when
there is real need or necessity in promulgating the Ordinances.

In further the case of D.C. Wadhwa v. State of Bihar[8], the State of Bihar’s
promulgating and re-promulgating ordinances were challenged as there was
promulgation of the same in “massive scale”. Between the year 1967-81, 256
ordinances were promulgated and then re-promulgated and some among them remain
into existence for up to 14 years. Chief Justice P.N. Bhagwati observed:

“The power to make an ordinance is to meet an extraordinary situation and it should

not be made to meet political ends of an individual. Though it is contrary to
democratic norm for an executive to make a law but this power is given to the
President to meet emergencies so it should be limited in some point of time.”

The power of judicial review of ordinances was once again discussed in year 1998 in
the case of Krishna Kumar Singh v State of Bihar, in this case the Supreme Court
struck down many number of ordinances stating that no particular basis for the
exercise of the Ordinance making power of the President had been shown. It also
stated: “There was also no explanation offered for promulgating one ordinance upon
another”.

Though the sheer profligacy in ordinance making power of the President had
compelled the Apex Court to perform some judicial review, there is still no clarity on
the nature and extent of the judicial review of the court over the ordinances made by
the President or the Governor.

Conclusion
In most of the cases Power of Ordinance making is a controversial topic and a topic of
discussion. It tries to disturb the balance between the executive as well as legislative
powers by bringing into the element of arbitrariness into the Constitutional System
and disturbing the rule of law. Whenever such an ordinance making power is
exercised by an Executive body it shows disregard to the legislature. Till now only a
few grounds are established to challenge the validity of the Ordinances: (a.) directly
violates a constitutional provision, (b.) president has exceeded his constitutional
power, (c.) President had made a colorable use of his power.

[1] 1970 AIR 564.

[2] 1982 AIR 710.

[3] AIR 1974 SC 1533: (1974)4 SCC 827; p.832.

[4] 1985 AIR 724.

[5] 1993 (4) SC 27.

[6] AIR 1994 SC1918;p. 1969-70.

[7] 1962 AIR 945.

[8] 1987 AIR 579.

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