On the 23rd of May 1949, the Constituent Assembly held a debate on Article 102. The president's power to promulgate an ordinance is discussed in this article. Article 123 of the current Indian Constitution, which states, "Power of the President to promulgate Ordinances during the recess of Parliament." This article explains the Constituent Assembly Debate on Ordinance Making Power of the President which is important for UPSC Indian Polity Preparation.

Constituent Assembly Debate on Ordinance Making Power of the President

Provision -

Article 102, Draft Constitution, 1948

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 Ordinances as the circumstances appear to him to require.

Debate -

• A member proposed an amendment to clause (1) that would limit the President's power to issue an ordinance to times when neither house of Parliament was in session, as he thought the current provision was too broad.
  • Dr. Ambedkar, the Chairman of the Drafting Committee, countered that this would render the power ineffective because both Houses were necessary to pass legislation.
  • As a result, allowing the President to utilize these ordinance-making powers even if only one House was in session was critical, because "the structure for passing law in the ordinary process did not exist" when only one House was in session.
  • "That the terms 'when both Houses' be substituted for the phrases 'when one or both Houses,' and the words such Ordinance or Ordinances' be substituted for the words such Ordinance or Ordinances,' respectively, in clause (1) of Article 102."
  • The amendment was unsuccessful.
• Another member of the Constituent Assembly proposed amending article (1) to add the caveat that no ordinance could 'deprive any citizen of his right to personal liberty save on conviction following a competent court of law'. This plan was defeated in a vote.
  • The members attempted to defend the amendment by citing ordinances passed during British control that had subjected people to long periods of incarceration without charge or trial. Even in times of emergency, citizens' core fundamental rights should not be violated.
  • Dr. Ambedkar responded that clause (3) of the Draft Article already stated that ordinances would be "subject to the same limits as a law established by the legislature through the ordinary procedure," which included the need to pass laws that were in accordance with Fundamental Rights.
  • This change was unnecessary because Draft Article 15 (Article 21) already provided this protection to the people.
• Another member proposed an amendment requiring ordinances to be presented to Parliament within four weeks of their promulgation date. This amendment, too, was defeated.
  • When read in conjunction with Draft Article 69 (Article 85), the member argued that this clause would have the effect of allowing the ordinance to be in effect for up to 7.5 months, which would be an extremely long period of time. The imposition of a set time range within which an ordinance would cease to exist/expire was a necessary safeguard against legislative power abuse.
  • While other members agreed with the reasoning for the amendment, there was disagreement over the time frame.
  • A member suggested that the ordinance should automatically expire 30 days from the date it was promulgated. The amendment was voted down.
• Another member proposed that the section be altered to ensure that an ordinance would be presented to both houses immediately following the Parliament's reassembly, and that the alteration would cease to exist unless either chamber approved it.
  • Dr. Ambedkar said that these revisions did not account for emergency scenarios in which Parliament could not reassemble within the required timetable under any circumstances.
  • He replied that the ordinance-making power was an emergency one with very restricted reach, and that the Draft Article and other sections of the Indian Constitution contained sufficient safeguard clauses to avoid any misuse of the provision.
• "Every such ordinance shall be brought before both Houses of the Parliament immediately after each House assembles and shall cease to operate promptly unless authorised by either House of the Parliament by Specific Resolution," said the second modification. This amendment was defeated in the voting process.
  • The above-mentioned amendment was introduced primarily to provide an appropriate basis for the rule of law. It was argued that the emergency power should not be conferred in an unusual way. The excessive power should not be given to the executive unless it is approved by Parliament, according to the recommendations.

Conclusion

When Parliament is not in session, the founders of the Indian Constitution gave the President exceptional powers, including the ability to make laws. This power is exclusively available to the President of India in an emergency. The President's power to issue an emergency ordinance is analogous to a legislation passed by the legislature through the normal legislative procedure. None of the legislation passed by the legislature through the normal legislative process had the authority to strip citizens of their basic rights. The President's power to issue ordinances in an emergency is clearly applicable to the same element.

FAQs

MCQs

1. Under which Article of the Indian Constitution is the President's Ordinance-making power mentioned?

A) Article 123
B) Article 124
C) Article 129
D) Article 110

2. What is the maximum period an ordinance can remain in force without being ratified by Parliament?

A) 3 months
B) 6 months
C) 1 year
D) 6 weeks

3. Which of the following is a valid reason for the promulgation of an ordinance?

A) To make minor amendments to existing laws
B) To deal with an emergency or urgent issue when Parliament is not in session
C) To modify the Constitution
D) To introduce a new subject of law

4. Which of the following statements about ordinances is correct?

A) An ordinance must be signed by the Speaker of the Lok Sabha
B) An ordinance does not need approval from the Rajya Sabha
C) An ordinance can remain in force for a maximum of six months without approval from Parliament
D) The President’s Ordinance-making power is unlimited in scope

5. Who can challenge the validity of an ordinance in India?

A) Any citizen of India
B) Only the Supreme Court
C) Only a member of Parliament
D) Only the President

GS Mains Questions and Model Answers

Q1: Evaluate the pros and cons of the President’s Ordinance-making power as discussed during the Constituent Assembly debates.

Answer: The President's Ordinance-making power was hotly debated in the Constituent Assembly. Supporters argued that it was necessary for efficient governance, especially in cases of emergencies or when Parliament is not in session. They believed it allowed the executive to act swiftly to address pressing issues. However, critics feared that such powers could lead to authoritarianism, bypassing the democratic legislative process. They emphasized the need for a check on the President's discretion, arguing that ordinances should not become a routine substitute for legislation. Ultimately, the provision was accepted with safeguards, such as the requirement for parliamentary approval within six weeks, to ensure that ordinances would not undermine the legislative process.

Q2: Discuss the significance of the President’s Ordinance-making power in the context of India's federal system.

Answer: In India's federal system, the President’s Ordinance-making power plays a crucial role in maintaining governance continuity, especially during situations where Parliament cannot convene due to elections, adjournments, or other reasons. This power allows the central government to introduce urgent laws for matters requiring immediate attention. However, its use in a federal system raises concerns about the potential for central overreach, as ordinances can bypass state legislatures. The ordinance power must, therefore, be exercised with caution, ensuring that it does not undermine the autonomy of states or encroach upon their legislative domain.

Q3: Analyze the safeguards in place for the President’s Ordinance-making power to prevent misuse.

Answer: The Constitution provides several safeguards to prevent the misuse of the President’s Ordinance-making power. Firstly, ordinances must be approved by both Houses of Parliament within six weeks after the President's promulgation. If not ratified, the ordinance lapses. Additionally, ordinances can only address urgent matters and cannot be used to replace regular legislation. Courts can also review the validity of ordinances, ensuring they are not passed arbitrarily. These checks ensure that the ordinance-making power is not used excessively or inappropriately, maintaining the balance between the executive and legislative branches of government.

Previous Year Questions on Ordinance Making Power of the President 

1. UPSC CSE Prelims 2019:

Question: Under which condition can the President of India promulgate an ordinance?

A) When both Houses of Parliament are in session
B) When Parliament is dissolved
C) When both Houses of Parliament are not in session
D) When the Prime Minister advises

Answer: (C)

Explanation: The President can promulgate an ordinance when both Houses of Parliament are not in session, and there is an urgent need for legislative action. The ordinance has the same force as a law passed by Parliament but must be approved by Parliament within six weeks of reassembling.

2. UPSC CSE Mains 2020:

Question: Discuss the role of the President’s Ordinance-making power in ensuring governance continuity during emergencies.

Answer: The President's Ordinance-making power ensures that governance continuity is maintained during emergencies, such as when Parliament is not in session or in urgent situations where immediate action is required. It allows the executive to enact laws on urgent matters to avoid legal vacuums. However, this power is limited, and ordinances must be ratified by Parliament within six weeks to prevent misuse. The provision reflects a balance between effective governance and democratic safeguards, ensuring that ordinances are not used arbitrarily or to bypass legislative scrutiny.