Power of President to promulgate Ordinances during recess of Parliament

Article 102, Draft Constitution 1948

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament assented to by the President, but every such Ordinance-

(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament, or, 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(b) May be withdrawn at any time by the President.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.

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him 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 expiration of six weeks from the reassembly of Parliament, or, 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(b) may be withdrawn at any time by the President.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.

Draft Article 102 (Article 123) was debated on 23 May 1949. It laid out the scope and limitations of the President’s power to pass ordinances.

One member proposed that clause (1) be amended to restrict the ordinance-making power to when neither House of Parliament was in session, as the existing provision was too expansive. The Chairman of the Drafting Committee countered that this would render the power useless because both Houses of Parliament was involved in the passage of legislation. Hence, it was necessary to allow the President to exercise these powers even if one House was in session, because then ‘the framework for passing law in the ordinary process does not exist’.

Another member proposed that clause (1) be amended to include the proviso that no ordinance could ‘deprive any citizen of his right to personal liberty except on conviction after trial by a competent court of law.’ He justified this amendment by referring to the passage of ordinances in the British Provinces, which had subjected people to prolonged detention and deprived them of a trial. Even in emergency situations citizens should not be denied of basic fundamental rights. In response, the Chairman of the Drafting Committee stated that clause (3) of the Draft Article already stipulated that ordinances would be ‘subject to the same limitations as a law made by the legislature by the ordinary process’, including the requirement to pass laws that were congruent with the Fundamental Rights. Since Draft Article 15 (Article 21) already provided this protection to citizens, this amendment was unnecessary.

A member suggested an amendment which required ordinances to be placed before Parliament within four weeks from the date of promulgation. He argued that when read with Draft Article 69 (Article 85), the effect of this provision was that an ordinance could potentially be in effect for up to seven-and-a-half months, which was an excessively long period of time. The imposition of a fixed time period within which an ordinance would expire was a necessary safeguard against the misuse of legislative power.

While other members agreed with the reasoning behind this amendment, there was disagreement about the time period. One member proposed that the ordinance should automatically expire thirty days from the date of its promulgation. Another member proposed that the clause be amended to ensure that an ordinance was laid before both houses immediately after reassembly of Parliament, wherein it would cease to operate unless approved by either House. In response, the Chairman of the Drafting Committee contended that these amendments did not account for emergency situations in which Parliament simply could not reconvene within the stipulated time frame. He argued that this was an emergency power with a very restricted scope and that there were sufficient safeguards within the Draft Article and the other parts of the Constitution which would prevent misuse.

The proposed amendments were negatived, and the Draft Article was accepted by the Assembly. It was adopted on 23 May 1949.