Our Constituent Assembly was composed of famous men who had a variegated experience of life. They were not elected by the people to frame the Constitution but that was their strength, not their weakness. They were neither bound by a popular mandate nor bridled by a party whip. They brought to bear on their task their vast experience of life-in fields social, economic and political. Their deliberation, which run into twelve volumes, are a testimony to the time and attention which they gave with care and concern to evolving a generally acceptable instrument for the regulation of the fundamental affairs of the country and the life and liberty of its people.
Power of Ordinance under Government of India Act, 1935
The Constituent Assembly had before it the Government of India Act, 1935 and many of its members had experienced the traumas and travails resulting from the free exercise of the ordinance-making power conferred by that Act. They were also aware that such a power was not claimed by the Governments of two lading democracies of the world, the English and the American, and yet, they took the Government of India Act of 1935 as their model, Section 42 of that Act ran thus:
“42(1) If at any time when the Federal Legislature is not in section the Governor- General is satisfied that circumstances promulgate exist which render it necessary for him ordinances to take immediate action, he may during recess promulgate such ordinances as the circumstances appear to him to require:
(2) An ordinance promulgated under this section shall have the same force and effect as an Act of the Federal Legislature assented to by the Governor-General, but every such ordinance-
(a) shall be laid before the Federal Legislature and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or, if before the expiration of that period resolutions disapproving it are passed by both Chambers, upon the passing of the second of those resolutions;
(b) shall be subject to the provisions of this Act relating to the power of His Majesty to disallow Acts as is it were an Act of the Federal Legislature assented to by the Governor General; and
(c) may be withdrawn at any time by the Governor-General.
(3) If and so far as an ordinance under this section makes any provision which the Federal Legislature would not under this Act be competent to enact, it shall be void”.
Section 43 conferred upon the Governor-General the power to issue ordinances for the purpose of enabling him satisfactorily to discharge his functions in so far as he was by or under the Act required to act in his discretion or to exercise his individual judgment.
Ordinance Power under Constitution
Article 123, which confers the power to promulgate ordinances, occurs in Chapter III of Part V of the Constitution, called “Legislative Power of the President“. It reads thus:
“123 (1) If at any time, except when both Houses President of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate during action, he may promulgate such recess of ordinances as the circumstances appear parliament. recess of to him to require.
(2) An ordnance 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.”
Article 213, which occurs in Part VI, Chapter IV, called “Legislative Power of the Governor’‘ confers similar power on the Governors of States to issue ordinances.
The Object of Ordinance
The Constituent Assembly was of the view that the President’s power to legislate by issuing an ordinance is as necessary for the peace and good government of the country as the Parliament’s power to legislate by passing laws. The mechanics of the President’s legislative power was devised evidently in order to take care of urgent situations which cannot brook delay. The Parliamentary process of legislation is comparatively tardy and can conceivably be time-consuming. It is true that it is not easy to accept with equanimity the preposition that the executive can indulge in legislative activity but the Constitution is what it says and not what one would like it to be.
The Constituent Assembly indubitably thought, despite the strong and adverse impact which the Governor-General’s ordinance-making power had produced on the Indian Community in the pre-independence era, that it was necessary to equip the president with legislative powers in urgent situations. After all, the Constitution makers had to take into account life’s realities.
As observed by Shri Seervai in ‘Constitutional Law of India’ (2nd Ed., p. 16),
“Grave public inconvenience would be caused if on an Act, like the Bombay Sales Tax Act, being declared void no machinery, existed whereby a valid law could be promptly promulgated to take the place of the law declared void”.
Speaking for the majority in R.C. Cooper v. Union of India, Shah J. said:
“The President is under the Constitution not the repository of the legislative power of the Union, but with a view to meet extraordinary situations demanding immediate enactment of laws, provision is made in the Constitution investing, the President with power to legislate by promulgating ordinances.”
The Constituent Assembly therefore conferred upon the executive the power to legislate, not of course intending that the said power should be used recklessly or by imagining a state of affairs to exist when, in fact, it did not exist; nor, indeed, intending that it should be used mala fide in order to prevent the people’s elected representatives from passing or rejecting a Bill after a free and open discussion, which is of the essence of democratic process.
Having conferred upon the executive the power to legislate by ordinances, if the circumstances were such as to make the exercise of that power necessary, the Constituent Assembly subjected that power to the self-same restraints to which a law passed by the legislature is subject. That is the compromise which they made between the powers of Government and the liberties of the people.
Therefore, an ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is, fortunately and unquestionably, subject to the same inhibitions. In those inhibitions, lies the safety of the people. The debates of the Constituent Assembly (Vol. 8, Part V, Chapter III, pp 201 to 217) would show that the power to issue ordinances was regarded as a necessary evil. That power was to be used to meet extra-ordinary situations and not perverted to serve political ends.
The Constituent Assembly held forth, as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the Government and the liberties of the people not disturbed or destroyed.
A.K.Roy v. Union of India, (1981)