History of Ordinances

Ordinances promulgated from year 1950- 2008, are overwhelming in the areas of Finance
(129 in number), Labour (46), commerce & Industry (28), Home Affair (102) and Law and Justice
(29). Out of these a very few of them can be classified under actual emergencies, and hence
necessary as a constitutional obligation.

While the number of Ordinances issued under the supervision of first, second, third and
fourth Lok Sabha which was 39, 20, 31, and 34 respectively. The ordinances promulgated increased
thrice in the Fifth Lok Sabha, ie. 93 Ordinances were promulgated.

The up-going trend was reversed by the Janta Dal which during their three year term of
governance promulgated only 34 Ordinances from 1977-1979. The next two governments had
promulgated an average number of 10 Ordinances per year. The Narasimha Rao Government
from year 1991-1996 had promulgated an average of 21 ordinances per year and none of the
ordinance had ever dealt with either the corruption scam or with the prevailing political
instability. In fact none of them were re-introduced as Bill in the parliament. The National
Democratic Alliance (NDA) Government from year 1998-2004 had promulgated an average of
14.6 Ordinances per year and later the UPA Government from year 2004-2009 had promulgated
an average of 6.8 Ordinances per year.

Satisfaction of the President

One of the essentials to be kept in mind while passing an ordinance is that the President
should be satisfied; that circumstances exist that requires immediate actions on part of the
President. The apex court has not yet defined ‘satisfaction of the President’ and even whether the
subjective satisfaction of the President can be questioned in the Court of Law. To clearly clarify
the said ambiguity, Indira Gandhi led Government passed the 38th Constitutional (Amendment)
Act, 1975 which has expressly excluded the subjective satisfaction of the President outside the
purview of Judicial Review. Further in 44th (Amendment) Act, 1978 deleted this clause, holding
that the power of President could be challenged in the Court of Law if it is based on bad faith,
corrupt motive or had any mala fide intention.

In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the
subjective satisfaction of the President is not completely non-justiciable. Later in case of Venkata
Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex court over ruled its own decision and
held that the Satisfaction of the President cannot be called in question in the Court of law and is
out of Judicial Review.

About 615 Ordinances were issued between the years 1952 to 2006, and out of it only 1 can
be reasonably justiciable, which was introduced by the Prime Minister Morarji Desai in 1978-
where the currency notes in denominations of Rs.1000/5000/10,000 were demonetized-the reason
given was Parliament was not in session and it had to be done without letting people to know
about it, and it was one way to deal with corruption and inflation. If people had known about it,
the same thing would have been completely failed.

Out of 615 Ordinances, an average of 214 Ordinances were promulgated just 15 days before
the Parliament was supposed to be in session while 261 were promulgated within 15 days, when
Parliament was ending its session. One of the most outrageous moves was Indira Gandhi’s move
to nationalize Banks through an Ordinance issued by her.
 Important Cases

In the case of R.C. Copper v. Union of India [1], constitution validity of the Twenty-fifth
Amendment Act, 1971 was challenged which curtailed the right of property of an individual and
permitted the acquisition of the same by the government for the public use, on the payment of
compensation which has to be determined by the Parliament and not by the court of law. So in
the said case popularly known as Bank Nationalization case, the Apex court while examining the
constitutionality of Banking Companies Ordinance, 1969 which had sought to nationalize 14
commercial banks in India, it was held that President decision can be challenged on the ground
that no ‘immediate action’ was required on his part.

In the case of A.K. Roy v. Union of India [2], the Supreme Court while examining the
constitutionality of the National Security Ordinance, 1980 which was issued to provide for
preventive detention in certain cases, the Supreme Court argued that the President’s power of
making Ordinances is not beyond the Judicial Review of the court. However, the Court was
unable to explore the issues of the case further as the ordinance of the President was replaced by
an Act. The court also pointed out the need to exercise judicial review over the President’s
decision only at substantial grounds and not otherwise at every ‘casual challenge’.

In the case of S.K.G. Sugar Ltd v. State of Bihar [3], it was held that promulgating of an
Ordinance by the Governor is purely upon the Subjective Satisfaction of him and he is the sole
Judge to consider the necessity to issue the Ordinance and “his satisfaction is not a justiciable
matter”.

In the case of T. Venkata Reddy v. State of Andhra Pradesh [4], the petitioner challenged the
constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers
Ordinances, 1984. One of the grounds was that the Ordinance is void on account of the lack of
mind used by the Governor and from the commencement of the same the state legislature was
disapproving it. The ordinance is said to take effect as soon as it is promulgated by the President
and ceases to operate by the legislative act.

One of the questions which were raised in the above mentioned case by the court
was:“whether the validity of an Ordinance passed can be tested upon the similar grounds as to those on
which an executive or judicial action is tested”. In answering the question the Supreme Court cited
its own earlier judgment given in K.Nagaraj v. State of Karnataka [5], and held that the Power of
making Ordinances is a legislative action so the same grounds as related to the law making
should be challenged than challenging the executive or judicial grounds.

Further in the case of S.R. Bommai v. Union of India [6], in this case the scope of Judicial
Review was expanded as to where the court told that where the action by the President is taken
without the relevant materials, the same would be falling under the category of “obviously
perverse” and the action would be considered to be in bad faith. The Supreme Court held that the
exercise of power by the President under the Article 356(1) to issue proclamation is Justiciable
and subject to Judicial Review to challenge on the ground of mala fide.

In case of State of Orissa v. Bhupendra Kumar Bose [7], the court held that the rights and
obligations which are created by the Ordinance came into effect as soon as the Ordinance is
promulgated and the same cannot be extinguished until a proper legislature by a legislative body
 extinguishes those rights and obligations of the Ordinances. However, where the Ordinances
promulgated is an abuse of power and a kind of Fraud on the constitution, then, the state
prevailing with such promulgation should immediately revive.

An ordinance would be made open to challenge on the following grounds:

Ordinances are however framed by the executive body which is said to be a single, unified entity.
The President is the head of the executive body who promulgate ordinances on the advice of the
council of ministers. The most important requirement of the promulgation of the ordinances is the
‘necessity to take the immediate action’. Then there will be no difficulty in ascertaining the
satisfaction of the President when there is real need or necessity in promulgating the Ordinances.
In further the case of D.C. Wadhwa v. State of Bihar [8], the State of Bihar’s promulgating
and re-promulgating ordinances were challenged as there was promulgation of the same in
“massive scale”. Between the year 1967-81, 256 ordinances were promulgated and then re-
promulgated and some among them remain into existence for up to 14 years. Chief Justice P.N.
Bhagwati observed:
“The power to make an ordinance is to meet an extraordinary situation and it should not be made
to meet political ends of an individual. Though it is contrary to democratic norm for an executive to make a
law but this power is given to the President to meet emergencies so it should be limited in some point of
time.”