The question came before the court in the case of ‘A.K. Roy v. Union of India, (1981)’, when the supreme court was considering the validity of ‘National security ordinance, 1980’.
While setting out the petitioner’s case, the thrust of Petitioner’s counsel was that the power to issue an ordinance is executive power, not a legislative power, and consequently, is not law. But the court refused to accept the argument. According to the court, the heading of Chapter III of Part V is ‘Legislative Powers of the President”. Clause (2) of Article 123 provides that an ordinance promulgated under Article 123 “shall have the same force and effect as an Act of Parliament”.
The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason of sub clause (a) of clause (2), ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period.
Ordinance under Article 13
Article 13 (2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this provision shall, to the extent of the contravention, be void. Clause (3) of Article 13 provides that in Article 13, “law” includes, inter alia, an ordinance, unless the context otherwise requires. In view of the fact that the context does not otherwise so require, it must follow from the combined operation of clauses (2) ‘and (3) of Article 13 that an ordinance issued by the President under Article 123, which is equated by clause (2) of that article with an Act of Parliament, is subject to the same constraints and limitations as the latter.
Therefore, whether the legislation is Parliamentary or Presidential, that is to say, whether it is a law made by the Parliament or an ordinance issued by the President, the limitation on the power is that the fundamental rights conferred by part III cannot be taken away or abridged in the exercise of that power. An ordinance, like a law made by the Parliament, is void to the extent of contravention of that limitation.
The exact equation, for all practical purposes, between a law made by the Parliament and an ordinance issued by the President is emphasised by yet another provision of the Constitution. Article 367 which supplies a clue to the “Interpretation” of the Constitution provides by clause (2) that-
“Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an ordinance made by the President or, to an ordinance made by a Governor, as the case may be.”
Legislative Power to executive
It is clear from this provision, if indeed there was any doubt about the true position, that the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President. Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power. It may sound strange at first blush that the executive should possess legislative powers, but a careful look at our Constitution will show that the scheme adopted by it envisages the exercise of legislative powers by the executive in stated circumstances.
An ordinance can be issued by the President provided that both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action. An ordinance which satisfies these pre-conditions has the same force and effect as an Act of Parliament.
Article 356 empowers the President to issue a proclamation in case of failure of constitutional machinery in the States. By Article 357 (I) (a), if by a proclamation issued under Article 356 (1) it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it is competent for the Parliament to confer on the President the power of the Legislature of the State to make laws.
Indeed, by the aforesaid clause (a), the Parliament can not only confer on the President the power of the State Legislature to make laws but it can even authorise the President to delegate the power so conferred to any authority to be specified by him in that behalf. The marginal note to Article 357 speaks of the “Exercise of Legislative powers” under the proclamation issued under Article 356. There cannot be the slightest doubt that not only the power exercised by the President under Article 357(1)(a) but even the power exercised by his delegate under that clause is legislative in character.
It is therefore not true to say that, under our Constitution, the exercise of legislative power by the legislature properly so called is the only source of law. Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357 (1) (a) partake fully of legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution.
Ordinance related to the power of Right to life
The Petitioner’s counsel was also contended that even assuming that the power to issue ordinances is legislative and not executive in character, ordinance is not ‘law’ within the meaning of Article 21 of the Constitution. That article provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. It was contended by the counsel that the decision of this Court in A. K. Gopalan(1950) establishes that the supremacy of the legislature is enshrined in Article 21 as a fundamental right in order to afford protection to the life and liberty of the people against all executive powers and, therefore, the supremacy of the legislature cannot be replaced by making the executive supreme by allowing it to promulgate ordinances which have the effect of depriving the people of their life and liberty.
The extent of protection afforded to the right conferred by Article 21 consists, according to counsel, in the obligation imposed upon a democratic legislature to devise a fair, just and reasonable procedure for attenuating the liberties of the people. Since the very object of Article 21 is to impose restrains on the power of the executive in the matter of deprivation of the life and liberty of the people, it is absurd, to concede to the executive the power to deprive the people of the right conferred by Article 21 by issuing an ordinance.
The argument, in other words is that the executive cannot under any conditions or circumstances be permitted to liberate itself from the restraints of Article 21.
It was also urged that by elevating ordinances into the status of laws, the principle of separation of powers, which is a part of the basic structure of the Constitution, shall have been violated. An additional limb of the argument was that an ordinance can never be said to ‘establish’ a procedure, because it has a limited duration and it transient in character.
On these contentions, the court said that the contention that the word ‘law’ in Article 21 must be construed to mean a law made by the legislature only and cannot include an ordinance, contradicts directly the express provisions of Articles 123(2) and 367(2) of the Constitution. Besides, if an ordinance is not law within the meaning of Article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by Article 13(2) of the Constitution.
And, the word ‘established’ is used in Article 21 in order to denote and ensure that the procedure prescribed by the law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. The fact that any particular law has a temporary duration is immaterial for the purposes of Article 21 so long as the procedure prescribed by it is definite and reasonably ascertainable.
The court further said that, the argument of the petitioner that the fundamental right conferred by Article 21 cannot be taken away by an ordinance really seeks to add a proviso to Article 123(1) to the following effect:
“Provided that such ordinances shall not deprive any person of his right to life or personal liberty conferred by Article 21 of the Constitution.”; An amendment substantially to that effect was moved in the Constituent Assembly by Shri B. Pocker Sahib, but was rejected by the Constituent Assembly, (see Constituent Assembly Debates, Vol. 8, p. 203).
Speaking on the amendment moved by Shri Pocker, Dr. Ambedkar said: “Clause (3) of Article 102 lays down that any law made by the President under the provisions of Article 102 shall be subject to the same limitations as a law made by the legislature by the ordinary process. Now, any law made in the ordinary process by the legislature is made subject to the provisions contained in the Fundamental Rights articles of this Draft Constitution. That being so, any law made under the provisions of Article 102 would also be automatically subject to the provisions relating to fundamental rights of citizens, and any such law therefore will not be able to over-ride those provisions and there is no need for any provision as was suggested by my friend, Mr. Pocker in his amendment No. 1796” (page 214). It may be mentioned that Draft Article 102 corresponds to the present Article 123 of the Constitution.
Therefore, the court rejected the contention that ordinance is not ‘law’ within the meaning of Article 21 of the Constitution.
On separation of powers too, the court maintained that there is no substance in the argument that the ordinance-making power, if extended to cover matters mentioned in Article 21, will destroy the basic structure of the separation of powers as envisaged by the Constitution. In the first place, Article 123(1) is a part of the Constitution as originally enacted; and secondly, our Constitution does not follow the American pattern of a strict separation of powers.