President's Legislative Powers in India: 2½ Myths

Oxford University Commonwealth Law Journal, Vol. 11, No. 2, 2011

30 Pages Posted: 11 Jun 2011 Last revised: 9 Oct 2012

See all articles by Shubhankar Dam

Shubhankar Dam

University of Portsmouth ; Columbia Law School

Date Written: June 11, 2011

Abstract

Article 123 in India’s Constitution authorises the president to promulgate ordinances when parliament is not in session. And these ordinances, the provision says, have the "same force and effect" as legislation enacted by parliament. Judicial opinions and academic commentaries have enthusiastically taken to this equivalence. There is no qualitative difference, the Supreme Court says, "between an ordinance issued by the President and an Act passed by Parliament." And because the president’s power in Article 123 is co-extensive with the power of Parliament to make laws, limitations cannot be read into it.

This interpretation of the "same force and effect" clause, I will argue, is mistaken. And the equivalence is a myth for Article 123 does not mean what it says. Despite language to the contrary, presidential ordinances in some cases cannot – and, in some other cases, should not – have the same force and effect as that of Acts. Two kinds of differences, I will argue, are implicated in the president’s power to promulgate ordinances, something I have previously explained as the president’s intermediate legislative power. In some respects, Acts and ordinances are absolutely different; they are entirely different things and, therefore, must produce contrary legal effects. In other respects, they are largely similar, but with degrees of variations on how that similarity may be legally employed. That is to say, they are qualifiedly different. And working through these differences will exemplify the 2½ myths that have grown around the words conferring the "same force and effect" to Acts and ordinances.

Keywords: ordinance, India, Article 123, legislation, president, parliament

JEL Classification: K30

Suggested Citation

Dam, Shubhankar, President's Legislative Powers in India: 2½ Myths (June 11, 2011). Oxford University Commonwealth Law Journal, Vol. 11, No. 2, 2011, Available at SSRN: https://ssrn.com/abstract=1862601

Shubhankar Dam (Contact Author)

University of Portsmouth ( email )

Richmond Building
Portsmouth, Portsmouth PO1 3DE
United Kingdom
+44 2392 844260 (Phone)

HOME PAGE: http://www.port.ac.uk/school-of-law/staff/professor-shubhankar-dam.html

Columbia Law School ( email )

435 West 116th Street
New York, NY 10009

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