The Indian government has recently re-promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. This ordinance bans the practice of instant triple talaq (‘talaq-e-biddat’). The decision follows an unsuccessful attempt to convert a previous ordinance, issued in September 2018, into law. With the bill currently pending in the Rajya Sabha, the fresh ordinance was issued due to a lack of parliamentary approval.
Ordinance Making Power of the President
Under Indian law, the power to legislate primarily rests with the legislature. However, there are provisions in place for circumstances when parliament is not in session, yet immediate action is deemed necessary. In these instances, the Indian constitution, under Article 123, empowers the President to issue an ordinance.
Once an ordinance is announced, it must be presented before Parliament within six weeks of its first sitting. Thereafter, Parliament can either approve or disapprove of the ordinance. If the latter happens, the ordinance may lapse within the six week timeframe. The longest period an ordinance can stay active is six months and six weeks, as the maximum gap between two parliamentary sessions is six months. Any ordinance enacted while both Houses are in session is considered null and void. Hence, the President’s power to legislate through ordinances should not be viewed as a parallel legislative authority. Moreover, the President has the discretion to withdraw the ordinance at any point.
President’s Satisfaction and Judicial Review
Historically, the President’s judgment on promulgating ordinances has been subject to question. In the Cooper case (1970), the Supreme Court maintained that a court could interrogate the President’s satisfaction if it was deemed malafide. The 38th Constitutional Amendment Act, passed in 1975, stated that the President’s satisfaction was final, irrefutable, and exempted from judicial review. However, this provision was repealed by the 44th Constitutional Amendment Act in 1978. Consequently, the President’s satisfaction can currently be challenged on account of malafide intent.
| Year | Case | Outcome |
|---|---|---|
| 1970 | Cooper Case | President’s satisfaction can be questioned if found malafide |
| 1975 | 38th Constitutional Amendment Act | President’s satisfaction was made final and without judicial review |
| 1978 | 44th Constitutional Amendment Act | Repealed the 38th Amendment, President’s satisfaction can be reviewed |
The Legalities of Re-Promulgation
The legality of successive re-promulgation of ordinances has also been challenged. In the D C Wadhwa case (1987), the court decreed that constant re-promulgation of identical ordinances—without attempts to pass the corresponding bills through assembly—constitutes a constitutional violation. The court further ruled that such an ordinance is susceptible to being struck down. The judiciary emphasized that the exceptional ordinance-making power should not substitute the legislative power of the state legislature.
In Krishna Kumar Singh vs. State of Bihar (2017), the Supreme Court ruled that ordinances are open to judicial review and do not automatically have lasting effects.