24 Aug 2016 4:42 AM GMT
There’s a touch of irony in speaking about India’s Ordinance Raj on the 14th of August, one day before my country celebrates its 69th Independence Day. Precisely 69 years ago our first Prime Minister, Jawaharlal Nehru, made a rousing speech about India’s tryst with destiny, which he promised would be redeemed at the stroke of the midnight hour that night. Two and a half years later, when...
“123(4) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground”.
But though the Constitution Bench in A.K. Roy (supra), held that it was arguable that the Forty-fourth Amendment left no doubt that judicial review is not excluded in respect of the President’s satisfaction, the Court left that question undecided. In D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, another Constitution Bench held that if the Executive takes over the law-making function of the Legislature, it “would be clearly subverting the democratic process which lies at the core of our Constitutional scheme, for then, the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive”. Once again, however, the Supreme Court in that case confined itself to striking down the repeated re-promulgation of Ordinances by the Bihar State Government, but did not settle the issue of judicial review of Presidential satisfaction.
12. The lesson which Constitutional draftsmen might draw from the Indian experience is to avoid conferring legislative powers upon the executive, and, if such powers are unavoidable, to make any such enactment strictly time-bound and transitory. It appears (though I could not confirm this) that countries like Srilanka, Malaysia, Singapore, Canada and Australia allow executive ordinances or decrees only in actual situations of national emergencies. I also understand that the United Kingdom allows such emergency decrees only for a period of 30 days. We in India, by contrast, have Ordinances being issued without even a semblance of emergency, and taking permanent and lasting effect.
 123. Power of President to promulgate Ordinances during recess of Parliament.
(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance--
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation-- Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
 State of Punjab v. Satyapal Dang, AIR 1969 SC 903, etc.
Chander Uday Singh is a Senior Advocate in Supreme Court of India.
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