ORDINANCE MAKING POWERS :

1. Of the President

In its Article 53 the Constitution lays down that the “executive power of the union shall be vested in the president”. The President of India shall, thus, be the head of the ‘executive power’ of the union. The executive power may be defined as the power of “carrying on the business of Government” or “the administration of the affairs of the state” excepting functions which are vested in any other authority by the Constitution. The various powers that are included within the comprehensive expression ‘executive power’ in a modern state have been classified under various heads as follows:

(i) Administrative power, i.e., the execution of the laws and the administration of the departments of Government.

(ii) Military power, i.e., the command of the armed forces and the conduct of war.

(iii) Legislative power, i.e., the summoning prorogation, etc. of the legislature.

(iv) Judicial power, i.e., granting of pardons, reprieves etc. to persons convicted of crime.

These powers vest in the President under each of these heads, subject to the limitations made under the Constitution.

Ordinance-making power

The most important legislative power conferred on the President is to promulgate Ordinances. Article 123 of the Constitution provides that the President shall have the power to legislate by Ordinances at any time when it is not possible to have a parliamentary enactment on the subject, immediately. This is a special feature of the Constitution of India.

The ambit of this Ordinance-making power of the President is co-extensive with the legislative powers of Parliament, that is to say it may relate to any subject in respect of which parliament has the right to legislate and is subject to the same constitutional limitations as legislation by Parliament.

On the other hand, according to Article 13(3)(a) “Law” includes an “Ordinance”. But an Ordinance shall be of temporary duration. It may be of any nature, i.e., it may be retrospective or may amend or repeal any law or Act of Parliament itself.

This independent power of the executive to legislate by Ordinance has the following peculiarities:

(i) the Ordinance-making power will be available to the President only when both the Houses of Parliament have been prorogued or is otherwise not in session, so that it is not possible to have a law enacted by Parliament. However, Ordinance can be made even if only one House is in Session because law cannot be made by that House in session alone. Both the Houses must be in session when Parliament makes the law. The President’s Ordinance making power under the Constitution is not a co-ordinate or parallel power of legislation along with Legislature.

(ii) this power is to be exercised by the President on the advice of his Council of Ministers.

(iii) the President must be satisfied about the need for the Ordinance and he cannot be compelled

(iv) the Ordinance must be laid before Parliament when it re-assembles, and shall automatically cease to have effect at the expiration of 6 weeks from the date of re-assembly or before resolutions have been passed disapproving the Ordinance.

(v) the period of six weeks will be counted from the latter date if the Houses reassemble on different dates.

2. Of the Governor

The executive power of the State is vested in the Governor and all executive action of the State has to be taken in the name of the Governor. Normally there shall be a Governor for each State but the same person can be appointed as Governor for two or more states. The Governor of a State is not elected but is appointed by the President and holds his office at the pleasure of the President. The head of the executive power to a State is the Governor just as the President for the Union.

Powers: The Governor possesses executive, legislation and judicial powers as the Presidents except that he has no diplomate or military powers like the President.

Ordinance making power

This power is exercised under the head of ‘legislative powers’. The Governor’s power to make Ordinances as given under Article 213 is similar to the Ordinance making power of the President and have the force of an Act of the State Legislature. He can make Ordinance only when the state Legislature or either of the two Houses (where it is bicameral) is not in session. He must be satisfied that circumstances exist which render it necessary to take immediate action. While exercising this power Governor must act with the aid and advise of the Council of Ministers. But in following cases the Governor cannot promulgate any Ordinance without instructions from the President:

(a) if a Bill containing the same provisions would under this constitution have required the previous section of the President.

(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President.

(c) an Act of the state legislature containing the same provisions would under this constitution have been invalid under having been reserved for the consideration of the President, it had received the assent of the President.

The Ordinance must be laid before the state legislature (when it re-assembles) and shall automatically cease to have effect at the expiration of six weeks from the date of the re-assembly unless disapproved earlier by that legislature.