|Demand of the question
Introduction. Contextual introduction.
Body. Safeguards to prevent possible misuse of such power.
Conclusion. Way forward.
Ordinances are temporary laws which can be issued by the President when Parliament is not in session. The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws.
Safeguards to prevent possible misuse of such power: The exercises of this power is subject to the following following limitations:
- When legislature is not in session: President can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. Thus, the power of the President to legislate by ordinance is not a parallel power of legislation.
- Justiciable: He can make an ordinance only when he is satisfied that the circumstances make it necessary for him to take immediate action. In Cooper case, (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court. Thus, the President’s satisfaction is justiciable on the ground of malafide. Further in S.R. Bommai v. Union of India, the scope of Judicial Review was expanded and any action by the President taken without the relevant materials, would be considered to be in bad faith.
- Limited to Parliamentary laws: His ordinance-making power is limited. An ordinance can be issued only on those subjects on which the Parliament can make laws.
- Cannot dilute fundamental rights: An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights .
- Parliamentary approval: Every ordinance issued by the President during the recess of parliament must be laid before both the Houses of Parliament when it reassembles.
- Non-discretionary: His power of ordinance-making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.
- As the Supreme Court has pointed out, the power to issue an ordinance is essentially an emergency power to be used only in extraordinary situations.
- Parliamentary supremacy and the power of judicial review are the cornerstone of our democratic republic. 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 ordinance-making power of the President in India is rather unusual and not found in most of the democratic Constitutions of the world including that of USA, and UK.The exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.