Chandana
Ordinance
The law making power in India vests in the hands of the legislature. The exception to this rule is that the President ( Parliament) or Governor (Legislature) can enact laws when either of the houses are not there in the session. Such laws promulgated by the President or the Governor are known as Ordinance.
Article 123 of the Indian Constitution deals with the President’s Power to promulgate an ordinance.
Article 213 of the Indian Constitution deals with the Governor’s Power to promulgate an ordinance.
Circumstances when the President can promulgate ordinance:
Article 123 of the Indian Constitution
The Ordinance can be promulgated when both the houses of Parliament are not in session. If one house is sitting but the other house is not, in such a circumstance too ordinance can be issued.
The President should be satisfied that circumstances exist which render it necessary for him to take immediate action.
Before Ordinance is brought into effect, the ordinance must be laid before both the houses.
It ceases to operate at the expiration of six weeks from the reassembly of Parliament or it may expire before six weeks or when a resolution is passed by both the houses disapproving the ordinance or if ceases to operate from the date of passing the second of those resolutions.
An ordinance made by the president shall be subject to the same limitation as a law made by the parliament.
Whether Re-Promulgation of Ordinance is a fraud on the Constitution?
In the case of Krishna Kumar Singh v State of Bihar, it was held that the re-promulgation of Ordinance is a fraud on the constitution. In addition, it also held that the satisfaction of the President under Article 123 and Governor under 213 while issuing an ordinance is not immune from judicial review.
Justice Chandrachud concluded with the following few points
An Ordinance which is promulgated under Article 123 and 213 will have the same force and effect as a law enacted by the legislature.
Laying of the ordinance before the Parliament or State Legislature is a mandatory constitutional obligation.
The Ordinance making power does not give the President or Legislature an independent legislative authority.
The need for, the validity of and expediency to promulgate an ordinance.
The failure to comply with a condition to lay before the legislature constitutes a serious constitutional infraction and abuse of constitutional process.
Dissenting opinion by Justice Madan B. Lokur
There is no mandatory requirement that the ordinance should be laid before the legislative assembly.
Even in circumstances when the ordinance is not laid down before the legislative assembly or not it is entirely governed by the provisions of Article 213(2)(a) of the constitution.
The court, in this case came to the conclusion that the failure of the government at the centre as well as state to place ordinance before Parliament and State legislature would in itself be constituted as a fraud on the constitution and the same cannot be allowed in the good spirit of law and order.
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