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
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: Suggested Citation