Adhyadesh..Promulgating the ordinance -Fact File


Fact File..Ordinance

Ordinance is Special Authorotative Order to enact law & Procedure in extraordinary circumstances 

-Our Constitution explicitly mentions that when Houses are not in session and circumstances exist that demand urgent action, the President (123) and the Governor (213) can promulgate ordinances but this will lapse within 6 weeks of reassembly. This is a provision for emergencies, has its roots in Government of India Act, 1935, and is the prerogative of the ruling party.

-In RC Cooper vs. Union of India(1970) the Supreme Court while examining the constitutionality of the Banking Companies Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision can be challenged on the grounds that ‘immediate action’ was not required and the ordinance was passed primarily to by-pass the debate and discussion in legislature.

-Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.

-Clause (4) was added to both Articles 123 and 213 that the satisfaction of the President and governor respectively shall be final and shall not be questioned in any court on any ground. But it was omitted by the 44th Amendment Act, 1978, Section 16 with effect from June 20, 1979.

-In A.K. Roy vs Union of India, the Supreme Court was asked to decide on the justiciability of the President’s satisfaction in the light of the 44th Amendment Act, the court held that “it is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President’s satisfaction”, but it declined to pronounce on the issue as the ordinance (challenged in the case) had been substituted by an act of Parliament by then.

-The President as well as the Governors are bound to act on advice of Council of Ministers who are blissfully aware that outraging the sanctity of the Constitution is not a punishable offence.

-Since it is promulgated when the legislature is not in session to meet extraordinary situations, it has to be replaced by an act within six weeks after the commencement of a session. The maximum life of an ordinance can be seven months and 12 days. However, Prof. D.C. Wadhwa, who worked on agrarian reforms in Bihar, discovered that some ordinances were kept in force for as long as 14 years by re-promulgation. He challenged it in the Supreme Court terming it as a fraud on the Constitution. The court accepted his contention. The recent government has promulgated nine ordinances in its eight months which has come under severe criticism for bypassing legislative scrutiny, making it an ordinance every 24th day.

-Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been promulgated.

-25 Ordinances have been promulgated during the term of the 15th Lok Sabha(2014-continue) so far.

-Indira Gandhi  in her tenure  of 5th Loksabha Promulgated 99 ordinances which is highest in any term

Sources:-PRS,The Hindu


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