Chapter 20: PRESIDENT

  • The President of India is elected by indirect election, As far as practicable, there shall be uniformity of representation of the different States at the election, according to the population and the total number of elected members of the Legislative Assembly of each State, and parity shall also be maintained between the States as a whole and the Union [Art. 55].

  • This second condition seeks to ensure that the votes of the States, in the aggregate, in the electoral college for the election of the President, shall be equal to that of the people of the country as a whole.

  • In this way, the President shall be a representative of the nation as wen as a representative of the people In the different States. It also gives recognition to the status of the States in the federal system.

  • The system of indirect election was criticised by some as falling short of the democratic ideal underlying universal franchise, but indirect elecnen was supported by the framers of the Constitution, on the following grounds

  • Direct election by an electorate of some 510 millions of people would mean a tremendous loss of time, energy and money. (ii) Under the system of responsible Government introduced by the Constitution, real power would vest in the ministry; so, it would be anomalous to elect the President directly by the people without giving him real powers.

  • The President's office may terminate within the term of five years In either of two ways-

  • By resignation In writing under his hand addressed to the Vice President of India

  • By removal for violation of the Constitution, by the process of impeachment [Art. 56]. The only ground for impeachment specified In Art. 61 (1) is 'violation of the Constitution'.

  • An impeachment is a quasijudicial procedure in Parliament, Either House may prefer the charge of violation of the Constitution before the other House which shall then either investigate the charge Itself or cause the charge to be investigated.

  • But the charge cannot be preferred by a House unless

  • a resolution containing the proposal is moved after a 14 days' notice in writing signed by not less than 1/4 of the total number of members of that House; and

  • the resolution Is then passed by a majority of not less than 2/3 of the total membership of the House.

  • The President shall have a right to appear and to be represented at such investigation. If as a result of the Investigation a resolution is passed by not less than 2/3 of the total membership of the House before which the charge has been preferred declaring that the charge has been sustained, such resolution shall have the effect of removing the President from his office with effect from the date on which such resolution is passed [Art. 61].

  • Since the Constitution provides the mode and ground for removing the President, he cannot be removed otherwise than by impeachment, in accordance with the terms of Arts. 56 and 61.

  • The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President. The president shall not hold any other office of profit [Art. 59(1)].

  • On the expiry of his term of five years.

  • By his death.

  • By his resignation.

  • On his removal by Impeachment

  • Otherwise, e.g., on the setting aside of his election as President

  • When the vacancy is going to be caused by the expiration of the term of the sitting President, an election to the vacancy must be completed before the expiration of the term [Art. 62( I)].

  • But in order to prevent an 'Interregnum', owing to any possible delay in such completion, it is provided that the outgoing President must continue to hold office, notwithstanding that hls term has expired, until his successor enters upon his office [Art. 5G(l)(c)].

  • (There is no scope for the Vice-President getting a chance LO act as President In this case.)

  • In case of a vacancy arising by reason of any cause other than the expiry of the term of the incumbent in office, an election to fill the vacancy must be held as soon as possible after, and in any case later than, six months from the date of occurrence of the vacancy.

  • Immediately after such vacancy arises, say, by the death of the President, and until a new President is elected, as above, it is the Vice President wbo shall act as President [Art. 65(1)].

  • It is needless to point out that the new President who is elected shall be entitled to the full term of five years from the dale he enters upon his office.

  • Apart from a permanent vacancy the President may be temporarily unable to discharge his functions, owing to his absence from India, illness or any other cause, in which case the Vice-President shall discharge his functions until the date on which the President resumes his duties [Art. 65(2)].

  • It is to be noted that besides the power of appointing the above specified functionaries, the Indian Constitutions does not vest In the President any absolute power to appoint inferior officers of the Union as is to be found in the American Constitution.

  • The Indian Constitution thus seeks to avoid the undesirable 'spoils system' of America, under which about 20 per cent of the federal civil offices are filled in by the President, without consulting the Civil Service Commission, and as a reward for party allegiance.

  • The Indian Constitution avoids the vice of the above system by making the 'Union Public Services and the Union Public Service Commission' - a legislative subject for the Union Parliament, and by making it obligatory on the part of the President to consult the Public Service Commission in matters relating to appointment.

  • If in any case the President is unable to accept the advice of the Union Public Service Commission, the Government has to explain the reasons therefor In Parliament.

  • In the marter of removal of the civil servants, on the other hand, while those serving under the Union hold office during the President's pleasure, the Constitution has hedged in the President's pleasure by laying down certain conditions and procedure subject to which only the pleasure may be exercised.


He is the head of the state and executive. The union executive consists of president, vice president, prime minister, council of ministers and attorney general. He is the first citizen of India.


Election of president:

Electoral College consisting of only elected members of both houses of the parliament, only elected members of legislative assembly [not any member of council] and elected members of legislative assemblies of UT's.

Members of dissolved legislative assemblies don’t participate in the Electoral College.

Presidential election is by proportional representation. All disputes of Electoral College are settled by Supreme Court only.

President election is declared invalid then the decisions made by him till that time remain valid.

Eligibility criteria for Presidential elections

Person to be eligible for president’s position he needs to have the following qualification:

  1. A citizen of India
  2. Qualified for election to be member of  Lok Sabha
  3. should be at least 35 yrs of age
  4. Should not hold any office of profit under a public authority in any union, state and local body in India.


Conditions for president’s office:

He should not be an MP / MLA in any house of centre or states and UT's. He must not hold an office of profit in India.


President is immune from criminal proceedings from official or personal acts.

Civil proceeding with regards to personal acts can be launched after two months.

Legal liability on account of official actions is null.

However his official conduct can be reviewed by court, tribunal or body authorized by either house of parliament when proceeding for impeachment are being conducted.

Term of office

Term of office is 5 years. Re-election is allowed any number of times.

He can resign in writing to vice president. His term can be extended till re-elections are over and new candidate takes over.

President can be impeached if any house passes a resolution by majority of two third of the total membership of the house. Similarly in the other house too, such a bill when passed leads to impeachment of the president. Impeachment can be done on grounds of violation of the constitution.

Nominated MP's too can participate in the impeachment proceedings.

If the office of the president falls vacant due to death, illness, removal or otherwise then vice president acts as president. If vice president is also unable then Chief Justice of India or in his absence senior most judge of SC can act as president. Justice Hidayatullah was the only one to get such a chance.


Powers and functions:

All executive actions of state are taken in his name. Powers of the president have to be exercised with the advice of the PM + council of ministers [42nd amendment]; the 44th amendment gave the president power to advice the PM + council to reconsider the advice but if the same advice is made again he has to follow it.

He can make rules specifying which orders and instruments made and executed in his name shall be authenticated.

He can makes rules for more convenient transaction of business of union government and allocation of said business among ministers.

He appoints PM and council of ministers and the attorney general, they occupy office during his pleasure. He appoints CEC and EC’s, CAG, Chairman and members of UPSC + finance commission + governors of state + interstate councils + administrators of UT's.

He can declare scheduled areas and tribal areas and has powers of administration of these areas. He can appoint members of SC + ST+ Womens+ OBC+ Minorities commission + Officer of Linguistic minorities.

He appoints administrators to UT’s called chief commissioner, lieutenant governor or administrator.


Legislative powers of president include:

Dissolving Lok Sabha. Summoning and proroguing house of parliament.

Summon joint sitting of both houses to resolve deadlocks.

He can send messages to the House of parliament regarding bills or otherwise.

He can nominate 12 members to Rajya Sabha from fields of art, science, literature and social service.

He can nominate two members of Anglo Indian community to Lok Sabha if he feels community isn’t adequately represented.

He decides questions of disqualification of MP's after advice of EC which is binding.

Money bills and bill leading to alteration of boundaries of state or UT's needs his approval before they can be introduced in the house. 

He lays the reports of UPSC, EC, and CAG before the house of parliament.

Ordinance making powers:

He can promulgate ordinances when parliament [both houses or any one house] isn’t in session however such ordinances have to be laid before parliament within 6 weeks of its reassembly. Thus they are temporary laws. The president should be satisfied of the need to take immediate action. President’s satisfaction is subject to judicial review. 

Ordinance can be made only on Union list matters and Fundamental rights can’t be abridged by them.Constitutional amendments can’t be made by ordinance.

Ordinances can be made by him only on advice of PM + council of ministers. It can give retrospective effect or repeal a law or tax law or other ordinance too.

He can legislate by making regulations for Puducherry but only when its legislature isn’t in session or dissolved.

Misuse of Ordinance making powers: Enemy Property Ordinance, 2017

Ordinance making powers are a legacy from the Indian Council Act, 1861 which gave the executive power to circumvent the legislature in making a law. However the decision to pass the Enemy property ordinance for the fifth time after failing to get the law passed through parliament is a abuse of the powers. The ordinance was passed specifically to nullify a decision of the Supreme court. A special article was inserted to allow the current custodian of the enemy property to dispose it by sale notwithstanding any judgment on it. This allows the government from having to hand over property to original owners.

Article 123 of the constitution clearly specifies that ordinance making powers are an emergency resort but the executive has turned it into a parallel law making source. The ordinance also redefines "enemy subject" and includes in its purview "even legal heirs of the enemy subject". Thus even Indian born heirs of the original owners are kept away from their ancestral property. The Ordinance thus is in complete contravention of Right to Property of these people. This must be examined for legal validity by courts.

Veto Power:

A bill can become an act only if it has received president’s assent. When a bill is given to the president he can:

  1. Give his assent [compulsory for constitutional amendments]
  2. Take no action on bill of legislature / Pocket veto. [only for ordinary bills / money bills]
  3. Withhold his assent / Absolute veto  [only for ordinary bills / money bills]
  4. Return the bill for reconsideration / Suspensive veto. However if the bill is again passed by parliament then he has to give his assent to it. [ only for ordinary bills ]

Qualified veto i.e. legislature can override presidential decision to return bill by a higher majority than what passed the bill isn’t available in Indian system unlike USA.

Above powers are also applicable to bills reserved for his assent by the governor; However for such State bills he can return them for reconsideration any number of times.

Financial Powers:

Money bills can be introduced in house only after his assent.

He constitutes a finance commission after every five years.

He causes to be laid the annual financial statement before parliament.

No demand for grant can be made except on his recommendation.

He can make advances out of the contingency fund of India for meeting unforeseen circumstances.

Judicial Powers:

He appoints judges of SC and HC's.

He can grant pardon [remove sentence and conviction], remit [reduce sentence but not its character], reprieve [stay on execution for a temporary period], commute [substitute sentence with a lighter form] or respite [award lesser sentence due to special factors of convict] sentence of a convict sentenced under union law, court martial or sentenced to death under any law.

He can seek advice from the SC on any question of law or fact; such advice is not binding on him.

Diplomatic Powers:

He negotiates international treaties and agreements of India. However they are subject to the approval of parliament.

Military Powers:

He is the supreme commander of defence forces. He appoints chiefs of army, navy and air force. He declares war or concludes peace subject to parliament’s approval.

Discretionary power:

1.      He can decide appointment of PM when no party has clear majority.

A caretaker government cant take a policy decision and president can decide what is policy decision.

2.      Dismiss the council of ministers when it loses majority in Lok Sabha

3.      Dissolve the Lok Sabha if the council of ministers has lost the support in the house.

  • The Supreme command of the Defence Forces is, of course, vested in the President of India, but the Constitution expressly lays down that the exercise of this power shall be regulated by Law [Art. 53(2)].

  • This means that though the President may have the power to take action as to declaration of war or peace or the employment of the Defence Forces, it is competent for Parliament to regulate or control the exercise of such powers.

  • The military powers of the Indian President shall be lesser than those of either the American President or of the English Crown.

  • The President's powers as Commander-In-Chief cannot be construed, as in the U.S.A.. as a power Independent of legislative control.

  • The President shall address both Houses of Parliament assembled together, at the first session after each general election to the House of the People and at the commencement of the first session of each year, and "inform Parliament of the causes of its summons"

  • The practice during the last five decades shows that the President's Opening Address is being used for purposes similar to those for which the 'Speech from the Throne' is used in England, viz., to announce the programme of the Cabinet for the session and to raise a debate as to the political outlook and matters of general policy or administration.

  • Each House is empowered by the Constitution to make rules for allotting time for discussion of the matters referred to in such address and for the precedence of-such discussion over other business of the House.

  • Besides the light to address a joint sitting of both Houses at the commencement of the first session, the President shall also have the right to address either House or their joint sitting, at any time, and to require the attendance of members for this purpose

  • The American President, on the other hand, possesses the right to recommend legislative measures to Congress by messages though Congress is not bound to accept them.

  • The Indian President shall have the power to send messages not only on legislative matters but also 'otherwise'.

  • Since the head of the Indian Executive is represented in Parliament by his Ministers, the power given to the President to send messages regarding legislation may appear to be superfluous, unless the President has the freedom to send message differing from the Ministerial policy, in which case again it will open a door for friction between the President and the Cabinet.

  • The Constitution requires the previous sanction or recommendation of the President for introducing legislation on some matters, though. of course, the Courts are debarred from invalidating any legislation on the ground that the previous sanction was not obtained, where the President has eventually assented to the legislation [Art. 255], These matters are:

    1. A Bill for the formation of new States or the alteration of boundaries, etc

    2. A Bill providing for any of the matters specified in Art. 31A(1)

    3. A Money Bill

    4. A Bill which would involve expenditure from the Consolidated Fund of India even though it may not, strictly speaking, be a Money Bil

    5. A Bill affecting taxation in whlch States are interested, or affecting the principles laid down for distributing moneys to the States, or varying the meaning of the expression of 'agricultural income' for the purpose of taxation of income, or imposing a surcharge for the purposes of the Union

    6. State Bills imposing restrictions upon the freedom of trade

  • When the executive is responsible to the legislature, the veto power becomes theoretical and is just a token power to prevent hasty and ill-conceived legislation.

  • Where, however, the Executive and the Legislature are separate and independent from each other, the Executive, not being itself responsible for the legislation, should properly have some control to prevent undesirable legislation.

  • Thus, in the United States, the President's power of veto has been supported on various grounds, such as

  • (a) to enable the President to protect his own office from aggressive legislation;

  • (b) to prevent a particular legislation from being placed on the statute book which the President considers to be unconstitutional (for though the Supreme Court possesses the power to nullify a statute on the ground of unconstitutionality, it can exercise that power only in the case of clear violation of the Constitution, regardless of any question of policy, and only if a proper proceeding Is brought before it after the statute comes into effect);

  • (c) to check legislation which he deems to be practically inexpedient or, which he thinks does not represent the will of the American people.

  • From the standpoint of effect on the legislation, executive vetos have been classified as absolute, qualified. suspensive and pocket vetos,

    1. Absolute Veto : The English Crown possesses the prerogative of absolute veto, and if it refuses assent to any bill, it cannot become law, notwithstanding any vote of Parliament. But this veto power of the Crown has become obsolete since 1700, owing to the development of the Cabinet system, under which all public legislation Is initiated and conducted in the Legislature by the Cabinet. Judged by practice and usage, thus there is at present no executive power of veto in England.

    2. Qualified Veto : A veto is 'qualified' when it can be overridden by an extraordinary majority of the Legislature and the Bill can be enacted as law with such majority vote, overriding the executive veto. The veto of the American President is of this class. When a Bill is presented to the President, he may if he does not assent to it, return the Bill with a statement of his objections, to that branch of Congress from where it originated. Each House of Congress then reconsiders the Bill and if its adopted again In each House, by a two-thirds vote of the members present -the Bill becomes a law withstanding the absence of the President's signature. The qualified veto is then overridden. But if if fails to obtain that two-thirds majority, the veto stands and the Bill fails. In the result, the qualified veto serves as a means to the Executive to point out the defects of the legislation and to obtain a reconsideration by the Legislature, but ultimately the extraordinary majority of the Legislature prevails. The qualified veto is thus a useful device in the United States where the Executive has no power of control over the Legislature, by prorogation, dissolution or otherwise.

    3. Suspensive Veto : A veto is suspensive when the executive veto can be overridden by the Legislature by an simple majority. To this type belongs the veto power of the French president upon a reconsideration, Parliament passes the bill again with a simple majority the President has no option but to promulgate it,

    4. Pocket Veto : There is a fourth type of veto called the 'pocket veto' which is possessed by the American President. When a Bill Is presented to him, he may neither sign the Bill nor return the Bill for reconsideration within 10 days. He may simply let the Bill lie on his desk until the ten-day llmit has expired. But, if In the meantime, Congress has adjourned i.e., before expiry of the period of ten-days from presentation of the Bill to the President), the Bill falls to become a law.

  • The veto power of the Indian President is a combination of the absolute, suspensive and pocket vetos.

  • As in England, there would be an end to a Bill if the President declares that he withholds his assent from It. Though such refusal has become obsolete in England since the growth of the Cabinet system under which it is the Cabinet itself which is to initiate the legislation as well as to advise a veto, such a provision was made in the Government of India Act, 1935.

  • Normally, this power is exercised only in the case of 'private' members' Bills.

  • In the case of a Government Bill, a situation may, however, be imagined, where after the passage of a Bill and before it is assented to by the President, the Ministry resigns and the next Council of Ministers, commanding a majority in Parliament, advises the President to use his veto power against the Bill. In such a contingency, it would be constitutional on the part of the President to use his veto power even though the Bill had been duly passed by Parliament.

  • If, however, instead of refusing his assent outright the President returns the Bill or any portion of It for reconsideration, a re-passage of the Bill by an ordinary majority would compel the President to give his assent.

  • This power of the Indian President, thus, differs from the qualified veto in the United States insofar as no extraordinary majority is required to effect the enactment of a returned Bill.

  • The effect of a return by the Indian President its thus merely 'suspensive'. [As has been stated earlier, this power is not available in the case of Money Bills.]

  • Another point to be noted Is that the Constitution does not prescribe any time-limit within which the President is to declare his assent or refusal, or to return the Bill.

  • Article III simply says that if the President wants to return the Bill, he shall do it 'as soon as possible' after the Bill is presented to him.

  • By reason of this absence of a time-limit, it seems that the Indian President would be able to exercise something like a 'pocket veto', by simply keeping the Bill on his desk for an indefinite time, particularly, if he finds that the Ministry is shaky and is likely to collapse shortly .

  • Besides the power to veto Union legislation, the President of India shall also have the power of disallowance or return for reconsideration of a Bill of the State Legislature, which may have been reserved for his consideration by the Governor of the State

  • Reservation of a State Bill for the assent of the President is a discretionary power of the Governor of a State. In the case of any Bill presented to the Governor for his assent after it has been passed by both Houses of the Legislature of the State, the Governor may, instead of giving his assent or withholding his assent, reserve the Bill for the consideration of the "President.

  • In one case reservation is compulsory, viz., where the law in question would derogate from the powers of the High Court under the Constitution

  • In the case of a Money Bill so reserved, the President may either declare his assent or withhold his assent. But In the case of a Bill, other than a Money Bill, the President may, Instead of declaring his assent or refuslng it, direct the Governor to return the Bill to the Legislature for reconsideration.

  • In this latter case, the Legislature must reconsider the Bill within six months and if it is passed again, the Bill shall be presented to the President again. But it shall not be obligatory upon the President to give his assent in this case too

  • It is clear that a Bill which is reserved for the consideration of the President shall have no legal effect until the President declares his assent to it.

  • But no time limit is imposed by the Constitution upon the President either to declare his assent or that be withholds his assent.

  • As a result, It would be open to the President to keep a Bill of the State Legislature pending at his hands for an indefinite period of time without expressing his mind.

  • In a strictly Federal Constitution like that of the United States, the States are autonomous within their sphere and so there Is no scope for the Federal Executive to veto measures passed by the State Legislatures.

  • Thus, in the Constitution of Australia, too, there is no provision for reservation of a State bill for the assent of the Governor-General and the latter has no power to disallow State Legislation.

  • But India has adopted a federation of the Canadian type. Under the Canadian Constitution the Governor-General has the power not only of refusing his assent to a Provincial legislation, which has been reserved by the Governor for the signification of the Governor-General's assent, but also of directly disallowing a Provincial Act, even where it has not been reserved by the Governor for his assent.

  • These powers thus give the Canadian Governor General a control over Provincial legislation, which is unknown in the United States of America or Australia.

  • This power has, in fact, been exercised by the Canadian Governor-General not only on the ground of encroachment upon Dominion powers, put also on grounds of policy, such as injustice, interference with the freedom of criticism and the like. The Provincial Legislature is to this extent subordinate to the Dominion Executive.

  • There is no provision in the Constitution of India for a direct disallowance of State legislation by the Union President, but there is provision for disallowance of such bills as are reserved by the State Governor for assent of the President.

  • The President may also direct the Governor to return the Bill to the State Legislature for reconsideration; if the Legislature again passes the Bill by an ordinary majority, the Bill shall be presented again to the President for his reconsideration.

  • But if he refuses his assent again, the Bill fails, In short, there is no means of overriding the President's veto, in the case of State legislation.

  • So, the Union's control over State legislation shall be absolute, and no grounds are limited by the Constitution upon which the President shall be entitled to refuse his assent.

  • As to reservation by the Governor, it is to be remembered that the Governor is a nominee of the President. So the power of direct disallowance will be virtually available to the President through the Governor.

  • These powers of the President in relation to State legislation will thus serve as one of the bonds of Central control in a federation tending towards the unitary type.

  • The President shall have the power to legislate by Ordinances at a time when It is not possible to have a Parliamentary enactment on the subject. immediately

  • The ambit of this Ordinance-making power of the President is coextensive 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.

  • Thus, an Ordinance cannot contravene the Fundamental Rights any more than an Act of Parliament. In fact, the constitution doubly ensures this position by laying down that "law includes an 'Ordinance'.

  • Subject to this limitation, the Ordinance may be of any nature as Parliamentary legislation may take, e.g., it may be retrospective or may amend or repeal any law or Act of Parliament itself. or course, an Ordinance shall be of temporary duration.

  • This independent power of the Executive to legislate by Ordinance is a relic of the Government of India Act, 1935. But the provisions of the Constitution differ from that of the Act of 1935 in several material respects as follows:

    1. Firstly. this power is to be exercised by the President on the advice of his Council of Ministers (and not in the exercise of his 'individual judgment' as the Governor-General was empowered to act, under the Government of India Act, 1935).

    2. Secondly, the Ordinance must be laid before Parliament when it reassembles, and shall automatically cease to have effect at the expiration of six weeks from the date of re-assembly unless disapproved earlier b) Parliament, In other words an Ordinance can exist at the most only for six weeks from the date of re-assembly.

    3. If the Houses are summoned to re-assemble on different dates the period of six weeks is to be counted from the later of those dates.

    4. Thirdly, the Ordinance-making power will be available to the President only when either of the two Houses of Parliament has been prorogued or is otherwise not in session, so that it is not possible to have a law enacted by Parliament.

    5. He shall have no such power while both Houses of Parliament are in session. The President's Ordinance-making power under the Constitution is, thus, not a co-ordinate or parallel power of legislation available while the Legislature is capable of legislating.

  • Any legislative power of the executive (Independent of the legislature) is unimaginable in the USA, owing to the doctrine of Separation of Powers underlying the American Constitution and even in England.

  • But the power to make Ordinances during recesses of Parliament has been justified in India, on the ground that the President should have the power to meet with a pressing need for legislation when either House is not in session.

  • Even though the legislature is not in session, the President cannot promulgate an Ordinance unless he is satisfied that there are circumstances which render it necessary for him to take 'immediate action'.

  • The only test is whether the circumstances which call for the legislation are so serious and imminent that the delay involved in summoning the Legislature and getting the measure passed in the ordinary course of legislation cannot be tolerated.

  • But the sole judge of the question whether such a situation has arisen is the President himself and it was held in some earlier cases a Court cannot enquire into the propriety of his satisfaction even where it is alleged that the power was not exercised in good faith.

  • But if on the expiry of an Ordinance it is repromulgated and this is done repeatedly then It is an abuse of the power and a fraud on the Constitution.

  • In Cooper's case, however, the Supreme Court expressed the view that Ihe genuineness of the President's satisfaction could possibly be challenged in a court of law on the ground that it was mala fide, e.g., where the President has prorogued a House of Parliament in order to make an Ordinance relating to a controversial matter, so as to by-pass the verdict of the Legislature.

  • When the Ordinance-rnaking power is to be exercised on the advice of a Ministry which commands a majority in Parliament, it makes little difference that the Government seeks to legislate by an Ordinance instead of by an Act of Parliament, because the majority would have ensured a safe passage of the measure through Parliament even if a Bill had been brought instead of promulgating the Ordinance.

  • But the argument would not hold good where the Government of the day did not carry an overwhelmlng majority.

  • Article 123 would, in such a situation, enable the Government to enact a measure for a temporary period by an Ordinance, not being sure of support in Parliament if a Bill bad been brought, Even where the Government has a clear majority in Parliament, a debate in Parliament which takes place where a Bill is introduced not only gives a nation-wide publicity to the 'pros and cons' of the measure but also gives to the two Houses a chance of making amendments to rectify unwelcome features or defects as may be revealed by the debate.

  • All this would be absent where the Government elects to legislate by Ordinance.

  • It is evident, therefore, that there is a likelihood of the power being abused even though it is exercisable on the advice of the Council of Ministers, its because the Ministers themselves might be tempted to resort to an Ordinance simply to avoid a debate In Parliament and may advise the President to prorogue Parliament at any time, having this specific object to mind.

  • It is clear that there should be some safeguard against such abuse. So far as the merits of the Ordinance are concerned, Parliament, of course, gets a chance to review the measure when Government seeks to introduce a Bill to replace it.

  • It may also pass resolutions disapproving of the Ordinance, If and when the Government is obliged to summon the Parliament for other purposes.

  • But the real question is how to enable Parliament to tell the Government, short of passing a vote of censure or of noconfidence. that it does not approve of the conduct of the Government in making the Ordinance instead of bringing a Bill for the purpose?

  • The House of the people has made a Rule requiring that whenever the Govemment seeks to replace an Ordinance by a Bill, a statement "explaining the circumstances which necessitated immediate legislation by Ordinance" must accompany such Bill.

  • The statement merely informs the House of the grounds advanced by the Government, A general discussion takes place on the resolution approving the Ordinance and generally a resolution is moved by the opposition disapproving the Ordinance.


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