In order to tide over an urgent situation, the Central Government requested the President to promulgate an ordinance. The president after satisfying himself that circumstances exist for him to take immediate action promulgated the ordinance as required by the Government. Can this ordinance be challenged before the court?
As per Art. 123 of the Indian Constitution, if at any time, when both Houses of the Parliament are not in session, and if the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may issue such Ordinance as the circumstances appear to him to require.
The Ordinance-making power has been vested in the President to deal with unforeseen or urgent matters. The Ordinance-making power is exercised by the President on his own satisfaction.
The court cannot inquire into the reasons for the subjective satisfaction of the President or into the sufficiency of those reasons.
In Emperor v. Banwari Lal Sharma, AIR 1946 PC 48, the Supreme Court held that the existence of necessity for promulgating the Ordinance is not justiciable. The validity of an Ordinance cannot be tested on grounds similar to those on which an executive or judicial action is tested.
The motive of the Legislature in passing a statute is beyond the scrutiny of Courts. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the Courts.
An Ordinance passed under Arts.123 and 213 stands on the same footing.
In T.Venkata Reddy v. State of A.P. (1985) 3 SCC 198, the Supreme Court further held that the validity of an Ordinance cannot be challenged on the grounds of non-application of mind, more so when it has been promulgated on the basis of a policy decision taken by the government.
However, an Ordinance cannot violate fundamental rights.
The object of conferring the Ordinance making power on President is to enable the executive to deal with the unforeseen or urgent matters.