The Role of the President and Union Cabinet in Promulgating Ordinances

The role of the President of India and the Union Cabinet in the promulgation of ordinances is a critical topic in India's constitutional framework, often brought into question given the dual roles they play. It is a commonly held belief that the Union Cabinet holds sole responsibility for ordinances promulgated, yet the President also plays an integral part. This article aims to clarify the respective roles, shedding light on the constitutional framework and the legislative process.

Art 74 and the Council of Ministers

According to Article 74 of the Constitution of India, the President of India acts only on the aid and advice of the Council of Ministers (CoM) headed by the Prime Minister. Historically, it has been the Union Cabinet that initiates and approves draft ordinances, which are subsequently presented to the President for promulgation. The CoM's role is not merely advisory but also decision-making, as it is the central administrative body responsible for advising the President on ordinances.

Article 123 and Executive Emergency

Article 123 of the Constitution of India provides that 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. This provision grants the President significant, albeit limited, executive emergency powers.

However, it's important to note that the President's satisfaction is not his personal satisfaction but must be based on the advice tendered to him by the CoM. The President is not a decision-making authority but a mere executor of the advice given by the CoM.

President's Role as Upholder of the Constitution

Under Article 123, the President, as the upholder of the constitution, ensures that immediate actions are undertaken when necessary. The President must confirm that the government has the support needed in Parliament to pass the ordinance into an act once it convenes. The President's role is crucial but limited, focusing on ensuring that the ordinances are passed through proper legal processes.

Criticism and Succession

While the Union Cabinet is often criticized for ordinances promulgated, the President is rarely held accountable. This is due to the nature of the presidency, which is primarily ceremonial and ceremonial in nature, with power concentrated in the hands of the Prime Minister and the Cabinet. For instance, if the President does not act on the advice of the CoM, the Prime Minister can be removed from office under certain circumstances.

In a recent example, during a parliamentary session in December, the government could table a Bill and pass it promptly. However, if Parliament is not in session (as is the case now), the President must act on the advice of the CoM. Failing to sign an ordinance under such circumstances would lead to legal complications and potential work stalling.

Conclusion

Understanding the roles of the President and the Union Cabinet in the promulgation of ordinances is crucial for a nuanced perspective on India's constitutional and legislative processes. The President acts on advice but has a role to ensure constitutional compliance. The real power lies with the Union Cabinet, which must ensure the president's action aligns with legislative needs and constitutions.

The key takeaway is that while the Union Cabinet initiates and approves ordinances, the President's role is essential in ensuring legislative continuity and constitutionality. The President's action is a safeguard, ensuring that any temporary laws passed by the government reflect the foundational principles of the Constitution of India.