Presidential Ordinance Powers: Legal Limitations and Misuse
- ByAdmin --
- 20 May 2025 --
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The President of India holds the power to promulgate ordinances under Article 123 of the Indian Constitution. This power is intended as an emergency legislative tool, allowing the executive to enact laws temporarily when Parliament is not in session and urgent legislation is required. While this power is crucial for governance during exceptional circumstances, it is bound by legal limitations to prevent its misuse. Over the years, concerns about the excessive and improper use of ordinance powers have sparked debate on democratic accountability and constitutional propriety.
Constitutional Basis of Ordinance Powers
Article 123 grants the President the authority to issue ordinances when both Houses of Parliament are not in session. These ordinances carry the same legal force as an act passed by Parliament but are inherently temporary. They must be presented before Parliament within six weeks of its reassembly and will lapse if not approved within that timeframe. This safeguard ensures that ordinances do not become a substitute for the regular legislative process.
Legal Limitations
Urgency and Necessity
The ordinance power is strictly an emergency provision. It can only be exercised when there is an urgent need for legislation that cannot wait for Parliament to convene. The Supreme Court of India has emphasized in landmark judgments that this power should not be used as a tool for routine governance or to bypass parliamentary procedures.
Temporal Limitation
Ordinances have a limited lifespan. Once Parliament resumes, the ordinance must be approved within six weeks or else it ceases to operate. This time-bound nature prevents the executive from enacting laws indefinitely without parliamentary oversight.
Subject Matter Restrictions
Ordinances cannot violate fundamental rights guaranteed under the Constitution or alter its basic structure. They must conform to constitutional mandates and cannot be used to make changes that require special procedures, such as amendments under Article 368.
Judicial Review
Courts retain the power to review ordinances to determine their constitutionality. If an ordinance is found to violate constitutional provisions or lacks genuine urgency, it can be struck down. The judiciary thus acts as a critical check on the misuse of ordinance powers.
Instances and Concerns Regarding Misuse
Despite legal safeguards, the ordinance power has sometimes been misused. Governments have frequently relied on ordinances to bypass parliamentary debate and push through contentious laws without proper discussion. This practice undermines parliamentary sovereignty and democratic transparency.
Ordinances have been used to enact politically sensitive or controversial laws, often during times of political uncertainty. In some cases, ordinances have been promulgated to swiftly implement electoral promises or to target political adversaries, raising questions about the misuse of executive authority.
Judicial intervention has checked such misuse in several cases, with courts invalidating ordinances that were arbitrary or lacked the urgency justifying their promulgation.
Judicial Safeguards
The judiciary has laid down clear principles to prevent the abuse of ordinance powers. In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court ruled that ordinances cannot be used as a substitute for legislation and must satisfy the test of urgency. In Rameshwar Prasad v. Union of India (2006), the Court underscored the temporary and exceptional nature of ordinances and affirmed that the legislative process cannot be circumvented through ordinances.
Conclusion
Presidential ordinance powers are an important constitutional mechanism for urgent governance when Parliament is not in session. However, the frequent and sometimes arbitrary use of this power threatens the principles of democracy and legislative supremacy. Adherence to constitutional limits, timely approval by Parliament, and vigilant judicial oversight are essential to prevent misuse and uphold the balance of power within India’s constitutional framework.
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