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The courts have reinforced that Ordinances are intended to tide over emergency situations and cannot substitute for the legislative process once the legislature reconvenes ["KRISHNA KUMAR SINGH vs STATE OF BIHAR . - Supreme Court"], ["CHEMMALA ASSAINAR HAJI Vs THE SUB COLLECTOR, PERINTHALMANNA - Kerala"].
Analysis and Conclusion:
References:- ["KRISHNA KUMAR SINGH vs STATE OF BIHAR . - Supreme Court"]- ["Kodur Service Co-operative Bank Ltd. No. R. 1523 and Others v. State of Kerala and Others - Kerala"]- ["Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620"]- ["KRISHNA KUMAR SINGH vs STATE OF BIHAR . - Supreme Court"]- ["NARESH RAJWADE vs STATE OF CHHATTISGARH - Chhattisgarh"]- ["P. Subairkunju vs The State of Kerala - Kerala"]- ["Kodur Service Co-Operative Bank Ltd. VS State of Kerala, Rep. by the Principal Secretary - Kerala"]- ["CHEMMALA ASSAINAR HAJI Vs THE SUB COLLECTOR, PERINTHALMANNA - Kerala"]
In the dynamic landscape of Indian governance, emergencies often demand swift legislative action. But what happens when both houses of the state legislature or Parliament are not in session? Can the Governor promulgate an ordinance introducing changes without first amending the principal law? This question—wherein both the houses in parliament is not in session then governor promulgate ordinance from such changes are valid without making amendments in principle law—lies at the heart of constitutional provisions under Articles 123 and 213 of the Indian Constitution.
This blog post delves into the validity of such ordinances, their constitutional basis, judicial interpretations, and practical limitations. While this provides general insights, it is not legal advice—consult a qualified lawyer for specific cases.
Articles 123 and 213 empower the President and Governors, respectively, to issue ordinances when legislative houses are not in session. These ordinances carry the same force and effect as an Act of the LegislatureKrishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109.
The scheme is clear: ordinances serve as emergency legislative measures for urgent circumstances. As noted, Ordinances issued under Articles 213 (State Governors) and 123 (President) are legislative in character and have the same force as laws Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109. They do not require amendments to any principal law to be valid, provided they stay within constitutional bounds and procedural norms.
Key conditions include:- Both houses must not be in session KRISHNA KUMAR SINGH vs STATE OF BIHAR ..- The Governor or President must be satisfied that circumstances necessitate immediate action GYANENDRA KUMAR VS UNION OF INDIA - 1996 Supreme(Del) 434.- Power to promulgate such Ordinance as the circumstances appear to the President to require is exercised--(a) when both Houses of Parliament are not in session; (b) the provision intended to be made is within the competence... KRISHNA KUMAR SINGH vs STATE OF BIHAR ..
This power bridges gaps when legislatures cannot convene, ensuring governance continuity without subverting democratic processes.
A common misconception is that ordinances must amend existing principal laws to be effective. However, ordinances are standalone legislative instruments with full legal potency Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620. Their validity hinges on:- Falling within constitutional authority.- Adhering to procedural requirements, like laying before the legislature upon reassembly.
The ordinances are not invalid simply because they do not amend the principal law; their validity depends on whether they fall within the constitutional power conferred and are issued for urgent circumstances Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620. No prior amendment to the principal Act is needed—they operate as laws in their own right T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109.
For instance, in cases involving urgent economic measures, such as price hikes on essential commodities, courts have upheld ordinances without questioning the absence of principal law changes. The Court held that the existence of circumstances necessitating the promulgation of an Ordinance under Article 123 of the Constitution is not justiciable KALYAN BHADRA VS UNION OF INDIA - 1973 Supreme(Cal) 279.
Ordinances address immediate needs: The constitutional intent is that ordinances are emergency legislative measures to be used when the legislature is not in session, with a limited lifespan (cease to operate after six weeks of reassembly unless replaced by legislation or disapproved) Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109.
They must be:- Laid before the houses upon reassembly.- Approved within six weeks or they lapse.- Replaced by an Act for permanence.
Although primary power of law-making is vested in the Parliament but as and when both the Houses are not in session and it becomes necessary to take immediate action... GYANENDRA KUMAR VS UNION OF INDIA - 1996 Supreme(Del) 434. This underscores their temporary, bridging role.
Courts adopt a restrained approach. They do not probe the Governor's or President's motives or 'application of mind.' Courts do not generally examine the motives or the application of mind of the Governor or President in issuing ordinances, as their power is legislative and not executive in nature Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109.
Review is limited to:- Whether procedural requirements were met.- If the ordinance exceeds constitutional power.
In a challenge to petrol price hike ordinances, the court affirmed: The petitioner had no fundamental right to get petrol at a price of his choice... the existence of circumstances necessitating the promulgation of the Ordinance was not justiciable KALYAN BHADRA VS UNION OF INDIA - 1973 Supreme(Cal) 279. Similarly, re-promulgation was upheld in specific scenarios, like short legislative sessions: The court carved out an exception... if the time at the disposal of the Legislature in a particular session is short, in that event the Governor or President may legitimately find that it is necessary to re-promulgate the Ordinances (from case on 10 re-promulgated ordinances).
While powerful, ordinance powers have checks:- Invalid if beyond scope: Provisions violating fundamental rights or legislative competence are void Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620.- No bypassing legislature: The Executive cannot take resort to an emergency power... only when the legislature is not in session; but... cannot take over the lawmaking function of the legislature GYANENDRA KUMAR VS UNION OF INDIA - 1996 Supreme(Del) 434.- Re-promulgation limits: Cannot indefinitely re-issue lapsed ordinances to evade legislature; exceptions for genuine constraints like heavy legislative business.- Temporary nature: Cease after six weeks without approval Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109.
Sources highlight: Ordinances making provisions beyond the scope of the constitutional power or violating fundamental rights are invalid Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620. In contexts like money-lending amendments, ordinances expanded scopes validly without principal changes, but subject to scrutiny NAGNATH BABURAO KOKATE VS STATE OF MAHARASHTRA - 2019 Supreme(Bom) 772.
Governor's role remains advisory-bound: The Governor is also required to summon the House or Houses of State Legislature... under Article 213 can promulgate Ordinances, during the period when the House or Houses are not in session GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI VS UNION OF INDIA - 2016 Supreme(Del) 2806NABAM REBIA, AND BAMANG FELIX VS DEPUTY SPEAKER - 2016 5 Supreme 227.
To leverage this power effectively:- Ensure both houses are truly not in session.- Document urgency for records.- Promptly introduce replacing Bills.- Avoid overreach to prevent judicial invalidation.
Legislatures should replace ordinances swiftly for democratic legitimacy. As Dr. Ambedkar noted historically, this power avoids parallel legislatures but demands restraint KRISHNA KUMAR SINGH vs STATE OF BIHAR . - 2017 Supreme(Online)(SC) 616.
Understanding these nuances ensures compliance in governance. For tailored advice, seek professional legal counsel. Stay informed on evolving judicial precedents shaping India's federal structure.
References:- Krishna Kumar Singh VS State of Bihar - 2017 1 Supreme 620, T. Venkata Reddy VS State Of A. P. - 1985 0 Supreme(SC) 109, KRISHNA KUMAR SINGH vs STATE OF BIHAR ., GYANENDRA KUMAR VS UNION OF INDIA - 1996 Supreme(Del) 434, KALYAN BHADRA VS UNION OF INDIA - 1973 Supreme(Cal) 279, NAGNATH BABURAO KOKATE VS STATE OF MAHARASHTRA - 2019 Supreme(Bom) 772, KRISHNA KUMAR SINGH vs STATE OF BIHAR . - 2017 Supreme(Online)(SC) 616, NABAM REBIA, AND BAMANG FELIX VS DEPUTY SPEAKER - 2016 5 Supreme 227.
#OrdinancePower, #IndianConstitution, #GovernorAuthority
However, this is subject to the exception that the Governor cannot promulgate an Ordinance when both Houses of the Legislature are in session. ... Power to promulgate such Ordinance as the circumstances appear to the President to require is exercised--(a) when both Houses of Parliament are not in session; (b) the provision intended to be made is within the competence ... The first is that an....
The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority; ... 105.5 Consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control. ... ordinance should be enacted (with or without amendments); ... 105.7. ... An ordinance i....
Although primary power of law-making is vested in the Parliament but as and when both the Houses are not in session and it becomes necessary to take immediate action in such cases where public interest may not suffer by reason of the inability of the Parliament to make law to deal with the emergent situation ... The Executive cannot taking retort to an emergency power exercisable by it only when the legislature is not#HL_E....
123 and 213; ... (iv) The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority; ... (v) Consistent with the principle of legislative supremacy, the power to promulgate ... Ambedkar, opposing the amendments, observed that while the Governor General under Section 43 of the Government of India Act, 1935 was a parallel legi....
and 213; (iv) The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority; (v) Consistent with the principle of legislative supremacy, the power to promulgate ordinances ... Dr Ambedkar, opposing the amendments, observed that while the Governor General under Section 43 of the Government of India Act, 1935 was a parallel le....
and 213; (iv) The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority; (v) Consistent with the principle of legislative supremacy, the power to promulgate ordinances ... Dr Ambedkar, opposing the amendments, observed that while the Governor General under Section 43 of the Government of India Act, 1935 was a parallel le....
The said power can be invoked by the Governor when it appears to him that immediate action is necessary for the promulgation of the ordinance when the Legislative Assembly is not in session or if the State has two houses, when one of the houses is not in session. ... The apex court, in the above decision, has taken note of the successive re-promulgation of the Ordinance without laying it before the State Legislatur....
"at the time when the impugned Ordinance was promulgated by the President neither of the Houses of Parliament was in Session. Mr. ... By Sub-section (1) of Section 88, Government of India Act, it is provided that if the Governor is satisfied that such circumstances exist he may promulgate an ordinance if at the time the Legislature is not in session. ... The said article reads as follows:--"123. (1) If at any time, except when both ....
Under Art. 123of the Constitution the President can promulgate an ordinance on the advice of the Council of Ministers to meet the requirements of a situation when either House of Parliament is not in session. ... render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: ... Provided that the Governor shall not, without instructions from the President, #HL_S....
An Ordinance is made in the exercise of the legislative power of the Governor which is subordinate to and not a stream which runs parallel to the power of law making which vests in the State Legislatures and Parliament. ... Power of Governor to promulgate Ordinances during recess of Legislature-- (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, exc....
It was in this backdrop that the State of Maharashtra introduced the 2014 Act, specifically including immovable properties within the ambit of the Act. 3. As both Houses of the State Legislature are not in session and the Governor of Maharashtra is satisfied that, circumstances exist which render it necessary for him to make a law, for the purposes aforesaid, this Ordinance is promulgated." 5. He submits that for time immemorial, the farmers were at the mercy of the money lenders and since the 1946 Act excluded immovable properties from the ambit of the Act, the farmers bec....
An eventuality such as the above can arise in two ways one where Lok Sabha and Rajya Sabha both, are not in session, two, when only one house is in session, as, in such a scenario also both Houses are not in session in the sense only one is in session. The latter situation is also germane to Article 123 as the object is to bestow powers of legislative nature on the President to meet situations of immediacy where law cannot be enacted by Parliament and only one House in session does not facilitate consideration/passing of the bill as it is required to be considered/passed by both the Houses s....
This function is exercised by the Governor, undisputedly, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The only exception to the non-participation of the Governor in legislative functions, is postulated under Article 213 (contained in Part VI Chapter IV of the Constitution), which apparently vests with the Governor, some legislative power. The Governor is also required to summon the House or Houses of State Legislature, or to prorogue or dissolve them under Article 174. The Governor under Article 213 can promulgate Ordinances, during the pe....
No such legislative power is vested with the Governor, while the House or Houses of the State Legislature are in session. The role assigned to a Governor in the entire gamut of the legislative process, is as ascribed under Article 200. But even the power to issue Ordinances, cannot be exercised by the Governor, on his own. Needless to mention, that when the House or Houses of the State Legislature are not in session, the Governor has the power to promulgate Ordinances under Article 213.
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