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
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
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
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
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
(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
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.
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
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
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
minister, council of ministers and attorney general. He is
the first citizen of
Election of president:
consisting of only elected members of both houses of the
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
President election is declared invalid then
the decisions made by
him till that time remain valid.
Eligibility criteria for Presidential
Person to be eligible for president’s
position he needs to have the following qualification:
- A citizen of India
- Qualified for election to be member of Lok Sabha
- should be at least 35 yrs of age
- Should not hold any office of profit under
a public authority in any union, state and local body in
Conditions for president’s
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
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
court, tribunal or body authorized by either house of
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
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
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
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
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
He appoints administrators to
UT’s called chief commissioner, lieutenant governor or
Legislative powers of president
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
He can nominate two members of Anglo
Indian community to Lok Sabha if he feels community isn’t
He decides questions of
disqualification of MP's after advice of EC which is
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
Ordinance can be made only on
Union list matters and Fundamental rights can’t be
abridged by them.Constitutional amendments can’t be made
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.
A bill can become an act only if
it has received president’s assent. When a bill is given
to the president he can:
- Give his assent [compulsory for
- Take no action on bill of legislature /
Pocket veto. [only for ordinary bills / money bills]
- Withhold his assent / Absolute veto
[only for ordinary bills / money bills]
- 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
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.
Money bills can be introduced in
house only after his assent.
He constitutes a finance commission after
He causes to be laid the annual financial
No demand for grant can be made except on his
can make advances out of the contingency fund of India for
He appoints judges of SC and
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
He negotiates international
treaties and agreements of India. However they are subject
to the approval of
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.
can decide appointment of PM when no party has clear
A caretaker government cant take a policy decision and
president can decide what is policy decision.
the council of ministers when it loses majority in Lok
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
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.
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
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:
A Bill for the formation of new States or the alteration of boundaries,
A Bill providing for any of the matters specified in Art. 31A(1)
A Money Bill
A Bill which would involve expenditure from the Consolidated
Fund of India even though it may not, strictly speaking, be a Money Bil
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
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
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,
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.
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.
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,
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
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
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.
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
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
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
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.
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.
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
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
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).
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.
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.
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
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
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
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
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
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
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?
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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