I have recently analysed the procedural aspects of the Ordinance issued by the President of India Mr. Pranab Mukherjee regarding appointment of Mr. Nripendra Misra. Prima facie this Ordinance has been promulgated in conformity with the Constitutional requirements and there are little reasons to agitate against the same. However, the allegations of “Political Impropriety” cannot be ignored in these circumstances. The only thing that remains to be seen is what “Potential Benefits’ the appointment of Mr. Misra would bring in these circumstances. Nevertheless, no “Constitutional Infirmity or Illegality” can be attributed to this Ordinance as on date.
Chapter III of the Constitution of India deals with the Legislative Powers of the President. Article 123 (1) of Constitution of India provides that 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. Article 123 (2) provides that an Ordinance 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disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) May be withdrawn at any time by the President. The Explanation to Article 123(2) provides that 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. Article 123(3) provides that 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.
By virtue of Article 123(1), the promulgation of an Ordinance is not necessarily connected with an “emergency” but issued by the President in case he is convinced that it is not possible to have the Parliament enact on same subject immediately and the circumstance render it necessary for him to take “immediate action”.
The Ordinance regarding Mr. Misra was duly approved by the President of India and the requirements of Article 123 have also been satisfied. It is very difficult to challenge the “Subjective Satisfaction” of the President of India before the Supreme Court of India that is based upon the “Aid and Advise” of Council of Ministers under Article 74(1) of the Constitution of India. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. However, the proviso to the Article 74(1) provides that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. Clearly the President of India did not find anything wrong with the Ordinance in question and did not find it a fit case to be “Reconsidered”.
Further, the Constitution of India provides two “Parliamentary Checks” vis-a-vis the promulgation of Ordinance under Article123 (2) (a). The Parliament can pass resolutions disapproving the provisions of the Ordinance. There is also a provision regarding automatic expiry of the Ordinance within six weeks of the reassembly of the Houses of the Parliament unless passed by the Parliament. This gives a chance for the Parliament to debate on the Ordinance and review it accordingly. Further, an Ordinance made by the President is not an Executive, but a Legislative act. Hence, it is a “Law” within the meaning of Constitution. Clause 3 of the Article 13 mentions that the term “Law” includes Ordinance and it is void to the “Extent of Contravention” of the Rights conferred by Part III of the Constitution. Article 367(2) of the Constitution also provides 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.
On a number of occasions, the Supreme Court of India has made it clear that the Court is competent to enquire whether in exercising his Constitutional Power in promulgating Ordinances; the President has exceeded the limits imposed by the Constitution. For instance, in DC Wadhwa v. State of Bihar (1987) the Supreme Court held that the Legislative Power of the Executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the Legislature. Here, the court was examining a case where a State Government (under the authority of the Governor) continued to “Re-Promulgate Ordinances”, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the State Legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. The Supreme Court argued that if Ordinance making was made a usual practice, creating an “Ordinance Raj” the Courts could strike down re-promulgated Ordinances. As far as Mr. Misra’s Ordinance is concerned this is the first time such an Ordinance has been promulgated and that also to give effect to the “Public Reforms” works to be undertaken by the new Government. Thus, the chances of “Judicial Review” are very negligible in this case.
The Ordinances promulgated by the President are required to be laid before both the Houses of Parliament. Normally, Ordinances are laid on the first sitting of the House held after the promulgation of the Ordinances on which formal business is transacted. The Parliament has framed certain rules to ensure that this power is not abused by the Executive, simply to avoid a vote or debate in Parliament. Rule 66 and Rule 71 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) and the House of the People (Lok Sabha), respectively seek to make the Executive accountable to the Parliament by appending an explanatory Statement along with Ordinance.
If a notice of a statutory resolution given by a private member, seeking disapproval of an Ordinance is admitted by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, time has to be provided by the Government for discussion thereof. The resolution after discussion is put to vote first; because if the resolution is adopted, it would mean disapproval of the Ordinance and the Government Bill seeking to replace that Ordinance would automatically fall through. If the resolution is negatived, the motion for consideration of the Bill is then put to vote and further stages of the Bill are proceeded with.
Although the Parliament is responsible for the law making process yet founding fathers of the Constitution considered Ordinances making power to be a “Necessary Evil”. They believed that the Ordinance making power should be delegated to the Executive to deal with such situations when the existing law is not enough to deal with the present circumstances and the Parliament is not in session.