Scope of the ordinance making the power of the president

Scope of the ordinance making the power of the president


The lawyer as well as the laymen is offer puzzled by the pharase’’ordinance making power’’ as implement to the American executive. Some of our legal text writers, none of our courts, speak of the ordinances of any administrative organs except municipals corporation.There are indeed writers who recognize that our executive do in face have power of a legislative character, but although they are not agreed on a term of such power. On the other hand professor Fairlie has recently spoken it has an administrative legislation. The term is used in England in the fourteenth century to disgraced an enactment of the king or the king in council without the acquiesce of parliament. Basically the power of the ordinance, which become more limited than the power of legislation, died out, says Anson in the fifteenth century to be the received in the next as the power of the proclamations’ might be implement to warn the issue of what the law was, but not the create a new offense. [1] They continued to be so used, however, until the abolition of the extraordinary court of the Star Chamber in 1641. Actually both England and America proclamation is a form of executive promulgation in the contents.     [2]A plain reading of Article 74 of the Constitution would communicate in unmistakable stipulations that, for the exercise of power by the President, there must be a Council of Ministers with the Prime Minister as the Head, to aid, help out and advise the President.

[1] See, Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005.

[2] explain about The President is also vested with certain executive powers and the capacity of such executive power embraces the remainder of powers after the legislative or judicial powers are exhausted or taken away.

There are three distinct activities in every government through which the will of the people are expressed.[3] These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary breach of law.[4] Each organ while amateur dramatics its activities tend to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public.[5] Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The question which assumes significance over here is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co-ordination among them. An analysis into these three organs and the relations between them is to be done with the experience in different.


Power of President to promulgate Ordinances during recess of Parliament. – (1) If at any time, except when both Houses President of Parliament are in session, the

President is satisfied that circumstances exist which Ordinances render it necessary for him to take immediate; he may promulgate such ordinances as the circumstances appear to require.

(2) 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

[3] The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the

[4] Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005

[5] There are ultra-liberal views on various constitutional provisions whichsay that the President if acts in disregard to the aid, aid-stance and

advice of the Council of Ministers, he could become an autocrat. D.N.Banerjee, an eminent jurist opined negatively and said that the Presidentis not only a dignified part of Government but also a cardinal componentof the essential apparatus and great pivot of substantial utility which attract motive power to be effectively employed in times of necessity.

Expiration of six weeks from the reassembly of Parliament, 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.Explanation-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.

(3) 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. Ordinarily the Parliament is responsible for the law making process, but the makers of the Constitution though considering Ordinances to be “a necessary evil”, hold 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 aroused situation and the Parliament is not in session.1

Constituent Assembly that for promulgation of an Ordinance

(a) Prerogative powers in exceptional situation:

President occupies the same position as that of the King in the British Constitution and he can do nothing contrary to their (Ministers) advice and the President means the Central Cabinet responsible to Parliament. 6] Ambedkar doubtlessly emphasized that the President would be mere figure head, who has no discretion and no powers of administration at all since he will be generally bound by the advice of the Council of Ministers. Even if the word generally is being interpreted under emu’s dem generis rule, the President would not enjoy any discretion to use prerogative powers in exceptional situation.

[7] In pursuance of the past practice and for the maintenance of the out ward dignity of the office of the President and for avoiding some practical difficulties of a constitutional character, it was also decided in the Constituent Assembly that for promulgation of an Ordinance, the President is generally bound by the advice of the Council of Ministers. However, certain members of the Constituent Assembly were not satisfied with the language of the provisions in the Draft Constitution which required abiding to the aid and advice of the Council of Ministers for promulgating an Ordinance.[8] To settle the issue, the historic deliberation of Dr. B.R. Ambedkar with Dr. Rajendra Prasad, in shaping the Constitution particularly with special reference to conferment of ordinance making power on the President, is illuminating:

Separation Of Powers Under Different Constitutions:

Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to apply it rigidly. In principle they go for separation of powers and dilution of powers simultaneously.

[6] 148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the “WPR”), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11 [7] See, Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers, Agra, Edition 1996 [8] The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional structure. Art. I vests the legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court. The framers of the American constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power. Accordingly they intended that the balance of power should be attained by checks and balances between separate organs of the government. This alternative system existing with the separation doctrine prevents any organ to become supreme.

Before we go to India, it’s important to know the constitutional setup of the country to which India was a colony and ultimately owes the existence of the form of government it has. U.K. follows a parliamentary form of government where the Crown is the nominal head and the real legislative functions are performed by the Parliament. The existence of a cabinet system refutes the doctrine of separation of powers completely. It is the Cabinet which is the real head of the executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds the power to dissolve the assembly.[9] The resting of two powers in a single body, therefore denies the fact that there is any kind of separation of powers in England.

Though, just like American constitution, in Indian constitution also, there is express

[9] See, Jain, M.P., ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition, 2005

mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. It has accordingly been held that there is no rigid separation of powers. Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature.[10] Constitution restricts the discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme Court has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of business.

Our review establishes that all three branches of the Federal Government – Congress, the Executive, and the Judiciary – agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.

In prospect of Bangladesh:

It is said that the Ordinance making power of the President is not justifiable. But these comments may become the subject of a discussion. In we go through the following discussion; we may get a different thing.

It is said in art. =1 of the Constitution of the Bangladesh, while giving immunity to the President of Bangladesh, that, “……..but this clause shall not prejudice the right of any person to take proceedings against the Government.” And according to art.102 (2) (a)(ii),

[10] In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs , Immunity from judicial scrutiny into the proceedings of the house , etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself. The President and the Governor enjoy immunity from civil and criminal liabilities. But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.

the High Court Division may make an order declaring that the proceeding taken by a person performing functions which has been done or taken without lawful authority in connection with the affairs of the Republic or of a local authority, has no legal effect.

Here, `without lawful authority` should include the meaning that an act has been done without maintaining the authority of Constitution.

In the case of Dr. Mohiuddin Faruque v. Bangladesh, [49 DLR (AD) 1.], B. B. Roy, J. said in paragraph 97 that- ” …… the expression ‘aggrieved person’ means not only any person who is personally aggrieved but also one whose heart bleed for his less fortunate fellow beings nor a wrong done by the Government or a local authority is not fulfilling its constitutional or statutory obligation.

Article 48(2) provides that, “the President shall, as Head of State……” and according to article 152, ‘State’ includes the Government. So, we may say| the President is the head of the Government.

Article 93(1) provides that, the President can make and promulgate Ordinance when he is satisfied that the existing circumstances deserve immediate action. It is obviously a constitutional obligation. And when he makes and promulgates an Ordinance in such a situation that immediate action is not necessary then it becomes a constitutional wrong.

In the case of Anwar Hossain v. Bangladesh (1989), B.H. Chowdhury said, “…..Then who will consider the validity or otherwise the law? Obviously the judiciary.” According to art.152, law also means Ordinance.

Thus, we may say that if the President makes and promulgates an Ordinance, the Ordinance may become justifiable on the application of any aggrieved person in the High Court Division on the ground that art.93 is not followed by the President in regard to make and promulgate an Ordinance.

Ordinance making power of President and a gap in the theory

It is said that, Constitution is the solemn expression of the will of the people. Thus, all the power conferred by the Constitution is conferred according to the will of the people. So, the Ordinance making power of President is a power, which is conferred according to the will of the people. The Ordinance must be passed by the parliamentarians [art.93].

However, parliamentarians are the representatives of the people and the wish of the people is expressed through the parliamentarians. Thus, when the parliamentarians disapprove an Ordinance it is to be seemed that the people also disapprove the Ordinance. So, when the representatives of the people disapprove an Ordinance then how does the Ordinance making power of President become the expression of the will of the people?

So, there is a gap. But it should be pointed out that, 1) the Ordinance making power is conferred by the Constitution according to the will of the people upon the President in order to make and promulgate such a type of Ordinances which reflect the will of the people according to the provisions of the Constitution.

2) President in order to make and promulgate the Ordinances must deserve the consent of the cabinet. Thus, when an Ordinance is made and promulgated, it is seemed that the Ordinance has got the consent of the cabinet as the ministers are the representatives of the people.

3) It is seemed that the President as the head of the State should be a man of conscience; good qualities, educated and these things must be reflected through the acts of the President. When the President makes and promulgates any Ordinance, it is seemed that it will be such a nature which will able to be passed by the parliamentarians.

4) When any power or duty is conferred then it is thought that it will be done honestly.

So, there is no gap at all. The nature and result of power and duty is depended upon the way of application of the power and perform of duty. The Ordinance making power of President is conferred by the Constitution so that it will be practiced honestly. But does it hamper the concept of popular sovereignty:

It is said that by using the Ordinance making power, the President moves aside the Parliament. The parliamentarians are the representatives of the people and through them the will of the people is expressed. So, when an Ordinance is made and promulgated it moves aside the will of the people. Thus, it is said that the Ordinance making power of President hampers the concept of popular sovereignty. But it can be said that the power does not hamper the concept totally, because of the reasons mentioned above. Art.48 (2) says that, “The President shall, as the Head of State…” that is the president is the head of the State. Art.152 says, “State includes the Parliament, the Government and statutory public authorities.”


The ordinance is a legislative power of the President and have the same force and effect of that a law passed by the Parliament. A committee always encourages significant public involvement in the parliament’s activities and sharing of power to initiate legislation themselves. The aid and advice of the Ministers is mandatory while exercising the executive power of the President, and any such act without the advice of the Council of the ministers shall be unconstitutional as being violative of Article 74(1). The satisfaction of the president is actually the satisfaction of the council of minister and the “satisfaction” of a President or a Governor must be based on such facts and circumstances which show “objectivity even in subjectivity.” Though, the ordinance making power is a co-extensive power.

Therefore, the set of guidelines of separation of powers is a theoretical concept and is impracticable to follow it completely. The status of modern state is a lot more different than what it used to be. It has evolved a great deal from a minimal, non-interventionist state to welfare state; it has multifarious roles to play, like that of a protector, arbiter, controller, and provider. This omnipresence of the state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a breach of the principle of separation of powers. But, it can claim the exercise of the minor functions of another organ. This dissimilarity prevents violation of an organ into the essential sphere of activity of the other.


1)             Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005.

2)              Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005

3)              Takwani, C.K., ‘Lectures On Administrative Law’, Eastern Book Company, Lucknow, 2004

4)              Sathe, S.P., ‘Administrative Law’, Lexis Nexis, New Delhi, Seventh Edition, 2004

5)              Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004

6)              Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers, Agra, Editio1996

7)              Jain, M.P., ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition, 2005

8)      13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999, as “the date of the commencement of combatant activities” in Yugoslavia); John C. Yoo, US Wars, US War Powers, 1 Chi. J. Int’l L. 355 (2000).

9)      16. News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), June10,1999,available (remarks of Sec. Cohen).

11)  18. General Michael E. Ryan, It may take time, but it’s inevitable, Air Force News (released June 8, 1999).

12)  19. See Nick Cook, War of Extremes, in Jane’s Defence Weekly (July 7, 1999), available at

13)  1. “As Lincoln aptly said, ‘[is] it possible to lose the nation and yet preserve the Constitution?’” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).

14)  John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).

15)        Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon, Constitutional Diplomacy 80-84 (1990);

16)        Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989).

17)        Powers Resolution Revisited, 21 Val. U.L. Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); Yoo, supra n.4

18)        Accord Massachusetts v. Laird, 451 F.2d at 31 (“[t]he executive may without Congressional participation repel attack”).

19)  . Robert F. Teplitz, Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int’l L. J. 569, 609 (1995) (citation omitted)

20)  Available at (remarks of Sec. C