Ordinances are primarily just laws that are passed by the President of India, in times of need and urgency, to combat unforeseen circumstances- like the current pandemic.
Ordinances have the same effect as an Act of Parliament. They enable the government to take immediate legislative action in desperate times. 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 the same limitations.
Limitations :-
- When the 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 the 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 were incorporated in the Constitution of India from the 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.
Article 74 of the Indian Constitution states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall in the exercise of his function, act under such advice. The 44th Constitutional Amendment inserted a proviso that the President may require the Council of Minister to reconsider the advice, and the President shall act according to the advice given after such reconsideration.
The President cannot function without a Council of Minister, nor can it exercise its executive power without the aid and advice of the Council of Minister. 5 On prima facie, it might seem that the ministerial advice is binding on the President, but legalistically is a directory in nature as it is not legally enforceable by court action.
Also Read: What is Judicial Activism – Aishwarya Sandeep
Article 361 states that a President shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The advice of the Ministers is not enforceable by Court in virtue of Article 74(2). The only action that can be brought against a President is through the impeachment of the President if he does not follow the advice of the Ministers on a crucial matter.
Further, it has been ruled that President is only the Nominal head or constitutional head of the executive with the real executive powers is vested in the Ministers or the Cabinet. The aid and advice of the Ministers are mandatory while exercising the executive power of the President, and any such act without the advice of the Council of the Ministers shall be unconstitutional as being violative of Article 74(1). However, under certain circumstances, the President may act without the advice of the Council of Ministers.
Some of the circumstances though not exhaustive include situations like:
- the choice of Prime Minister restricted through this choice is by paramount consideration that he should command a majority in the House
- the dismissal of a Government which has lost its majority in the House but refuses to quit the office,
- the dissolution of the House where an appeal to the country is necessitated, although in this area the Head of State should avoid getting into politics and must be advised by the Prime Minister who will ultimately take responsibility for this step. Even here the action must be compelled by the jeopardy of democracy and the appeal to the House or the Country must become blatantly obligatory.
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