Introduction 

The ordinance making power of the president is drawn from Article 123 of the constitution. This article gives the President of India legislative powers to issue ordinances when the country’s parliament is in recess. The ordinances work as an act of a parliament and have the same effect. The President has to be completely satisfied with the urgency of the matter on which he is asked to issue an ordinance. The president’s satisfaction concerning the ordinance is final should not be questioned on any ground by the judiciary.

Discussion

Ordinance Making Power of the President

The Indian constitution has provided the President of India with certain legislative powers; in this regard, in part V of the constitution, Article 123 gives the President the power to make ordinances when the parliament is in recess. The ordinances promulgated by the President of India have the same effect as an act of the Parliament. The ordinances promulgated by the president act as the Parliament’s act but remain temporary. Ordinance making power of the President is one of the essential powers of the President of India. The constitution’s framers provided for the ordinance making power of the President to deal with urgent and sudden cases.

Importance of Ordinance Making Power of the President

The ordinance making power of the president is regarded as an essential feature of democracy; this power gives the President legislative rights to form rules and laws on behalf of a recessed parliament. The importance of ordinance making power of president are as follows,

  • Indian constitution-makers provided a parliamentary democratic system for Indian polity, where the powers to govern the country were vested in three parts namely the judiciary, the legislature, and the executive. However, many times, one of the branches of governance cannot perform its duties. To overcome such hurdles the President is provided with powers to make ordinances. 
  • The framers of the constitution also realized the possibilities of situations where it could be urgent and necessary for the President to perform the legislative function in the absence of parliament itself.

Limitations to the Ordinance Making Powers of the President

Even though ordinance making power of President is one of the most important legislative powers of the President, it has the following limitations,

  • The ordinance can be promulgated by the President when one of the houses of the parliament is not in session. It is because the laws are required to be passed by both houses of the parliament.
  • The President can only promulgate an ordinance when he is entirely satisfied with an urgent requirement for him to take legislative action. 
  • The President’s satisfaction in promulgating an ordinance is subject to judicial review; the satisfaction of the President can be challenged in a court of law for mala fide intentions.
  • The President can issue ordinances only on those matters subject to the union list.
  • An ordinance made by the President cannot abridge the Fundamental Rights of the citizens as mentioned in Part III of the constitution. 
  • When the parliament reassembles, all the ordinances made by the President must be laid before both houses. If the ordinance is approved in both houses, it becomes an act of Parliament.
  • If either house of the parliament takes no action, the ordinance ceases to exist after six weeks of the reassembly of the parliament.
  • If both houses pass a resolution disapproving with an ordinance, it ceases to exist.

Misuse of Ordinance Making Power of The President

The ordinance making power of the President is required to be used urgently for better governance, but time and again, this power is misused by the governments. The misuse of ordinance making power is a serious challenge for Indian lawmakers.

Following are some cases in which the ordinance making power of president was misused,

  • The number of ordinances issued by the President has drastically increased since the 1950s.
  • In many cases, the states also rely on the ordinances to pass laws; for example, Kerala and Karnataka issued 81 and 24 ordinances respectively in 2020 alone.

Present State

Recently in 2017, the misuse of ordinance making power again came up. The Supreme Court, at this instance, gave a very strong verdict and called the re-promulgation of an ordinance as a fraud to the constitution and subversion of the legislative, democratic values. Despite this, the Commission for Air Quality Management case again brought up the same issue.

Conclusion

The ordinance making power of the president is a legislative power given to him by the constitution of India. The President of India can issue an ordinance when both houses of parliament are not in session. When an ordinance comes to force, it has the same effect as an act of the parliament; however, the ordinance making power of the president is subject to judicial review. The misuse of an ordinance making power is a serious issue and points towards a glaring systemic flaw.