In India, the President is granted the power to promulgate ordinances under Article 123 of the Constitution. This power allows the President to issue ordinances when Parliament is not in session to address urgent matters that require immediate attention.
Article 123: Ordinance Making Power:
1. When can an ordinance be issued?
- The President can promulgate ordinances when both Houses of Parliament (Lok Sabha and Rajya Sabha) are not in session, and there is a need for immediate action on a matter that falls within the legislative competence of Parliament.
2. Subject Matter of Ordinances:
- The subject matter of the ordinance must relate to a matter on which Parliament has the power to legislate. The President cannot issue an ordinance on matters exclusively within the domain of the states or on subjects outside the legislative competence of Parliament.
3. Temporary Legislation:
- The ordinance-making power is a temporary measure, and it is not a substitute for regular legislation. An ordinance has the same force as an act of Parliament but operates for a limited duration.
4. Approval by Parliament:
- The ordinance must be laid before both Houses of Parliament when they reassemble. It must be approved within six weeks from the date of reassembly, or it will cease to operate. The approval can be in the form of passing a bill containing the same provisions as the ordinance.
5. Duration and Re-promulgation:
- An ordinance initially remains in force for six weeks, and it can be extended for an additional six weeks with the approval of both Houses of Parliament. The total duration of an ordinance cannot exceed six months. Re-promulgation of ordinances is a controversial practice and is subject to criticism.
6. Limitations on the Power:
- The ordinance-making power is subject to certain limitations. It cannot be used to amend the Constitution, and it cannot be exercised when both Houses of Parliament are in session.
7. Justification for Immediate Action:
- The President must be satisfied that circumstances exist that require immediate action, making it necessary to promulgate an ordinance rather than waiting for the regular legislative process.
8. Comparable to Legislative Process:
- The process of issuing an ordinance is similar to the legislative process, with the President acting in the capacity of a temporary legislator. The President exercises this power on the advice of the Council of Ministers.
9. Review by the Judiciary:
- The judiciary has the power to review the validity of an ordinance. If the court finds that the ordinance-making power was misused, it can declare the ordinance null and void.
Usage and Controversies:
- The use of the ordinance-making power has been a subject of debate and controversy. Critics argue that it can be misused by the executive to bypass the normal legislative process. Re-promulgation of ordinances without parliamentary approval has been criticized as an evasion of constitutional principles.
Conclusion: The ordinance-making power is an important tool that allows the President to address urgent and pressing issues when Parliament is not in session. However, its use is subject to constitutional safeguards to prevent misuse and ensure that the regular legislative process is respected.
