Ordinances and Proclamations by the President
681
CHAPTER XXIII
Ordinances and Proclamations by the President
Ordinances
The Ordinance-making power of the President has been discussed in the
Lok Sabha on a number of occasions. Members have objected to the frequent resort
to this power by the Government, particularly on dates too close to a session of
Parliament, and expressed the view that Ordinances should be promulgated only when
it is absolutely necessary. Strong objection has been taken to the issue of fiscal
Ordinances1 on the ground that no impost partaking of the nature of a tax can be
levied by the Government without coming before the House and taking its approval.
Anyway, the test of emergency in the case of a fiscal Ordinance, it has been said,
should be much stricter than in the case of other Ordinances.
The Speaker has held that the promulgation of an Ordinance depends on the
satisfaction of the President that immediate action is called for. While advising the
President of the need for immediate action, Government cannot share the responsibility
with anyone; the power of Parliament to look into the desirability or otherwise of the
Ordinance is only ex post facto2.
1.
Instances when Ordinances were promulgated by the President for the purpose of levying taxes
or duties include the Dhoties (Additional Excise Duty) Ordinance, 1953; the Uttar Pradesh Terminal
Tax on Railway Passengers Ordinance, 1954; the Uttar Pradesh Terminal Tax on Railway Passengers
(Amendment) Ordinance, 1954; the Madras Terminal Tax on Railway Passengers Ordinance,
1956; the Mineral Oils (Additional Duties of Excise and Customs) Ordinance, 1958; the Sugar
(Special Excise Duty) Ordinance, 1959; the L.J.P. Sugarcane Cess (Validation) Ordinance, 1961;
the Mineral Products (Additional Duties of Excise and Customs) Amendment Ordinance, 1966;
the Stamp and Excise Duties (Amendment) Ordinance, 1971; the Railway Passenger Fares
Ordinance, 1971; the Tax on Postal Articles Ordinance, 1971; the Inland Air Travel Tax Ordinance,
1971; the Income-tax (Amendment) Ordinance, 1972; the Central Excise and Salt (Amendment)
Ordinance, 1973; the Income-tax (Amendment) Ordinance, 1975; the Additional Duties of Excise
(Textiles and Textile Articles) Ordinance, 1978; the Punjab Excise (Delhi Amendment) Ordinance,
1979; the Central Excise and Salt and Additional Duties of Excise (Amendment) Ordinance, 1979;
the Compulsory Deposit Scheme (Income-tax payers) Amendment Ordinance, 1981; the Income
Tax (Amendment) Ordinance, 1981; the Customs Tariff (Amendments) Ordinance, 1981; the
Central Excise Laws (Amendment and Validation) Ordinance, 1982; the Finance (Amendment)
Ordinance, 1987; the Union Duties of Excise (Distribution) Ordinance, 1995, and the Additional
Duties of Excise (Goods of Special Importance) Amendment Ordinance, 1995. For details, also see
Presidential Ordinances, 1950-2008, Lok Sabha Secretariat, New Delhi, 2009.
2.
L.S. Deb., 16-11-1953, cc. 34-35;c. 4925; 14-5-1957, cc. 223-26;c. 2932. 19-12-1953,
cc. 2578-82; 16-2-1954, cc. 84-136;13-8-1958, cc. 726-30; 18-8-1958, cc. 1380-87; 17-4-1954,
16-8-1958,
Referring to the issue of Ordinances as far back as in 1947, Speaker Mavalankar observed at the
Presiding Officers Conference:
“It was obviously a wrong convention for the Executive Government to promulgate Ordinances
merely because of shortage of time. That power was to be exercised only when there was an
emergency and the Legislature could not meet. It was not a desirable precedent to promulgate
Ordinances for want of time, as inconvenient legislation might also be promulgated in that manner.”
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Practice and Procedure of Parliament
The issue of promulgation of Ordinances by the President had been the subject
matter of correspondence between Speaker Mavalankar and Prime Minister Nehru.
Writing to the Minister of Parliamentary Affairs on 25 November 1950, Speaker
Mavalankar said:
The procedure of the promulgation of Ordinances is inherently undemocratic. Whether
an Ordinance is justifiable or not, the issue of a large number of Ordinances has psychologically,
a bad effect. The people carry an impression that Government is carried on by Ordinances. The
House carries a sense of being ignored, and the Central Secretariat perhaps gets into the habit
of slackness, which necessitates Ordinances, and an impression is created that it is desired to
commit the House to a particular legislation as the House has no alternative but to put its seal
on matters that have been legislated upon by Ordinances. Such a state of things is not conducive
to the development of the best parliamentary traditions.
In reply to the above letter, Prime Minister Jawaharlal Nehru wrote on 13
December 1950:
I think all of my colleagues will agree with you that the issue of Ordinances is normally
not desirable and should be avoided except on special and urgent occasions. As to when such
an occasion may or may not arise, it is a matter of judgment. Not only the Government of a
State, but private members of Parliament are continually urging that new legislation should be
passed. Parliamentary procedure is sufficient to give the fullest opportunities for consideration
and debate and to check errors and mistakes creeping in. That is obviously desirable. But, all
this involves considerable delay. The result is that important legislation is held up. Every
Parliament in the world has to face this difficult problem and various proposals have been
made to overcome it.
Again, in his letter of 17 July 1954 to the Prime Minister, Speaker Mavalankar
stated:
The issue of an Ordinance is undemocratic and cannot be justified except in cases of
extreme urgency or emergency.
...We, as first Lok Sabha, carry a responsibility of laying down traditions. It is not a
question of present personnel in the Government but a question of precedents; and if this
Ordinance issuing is not limited by convention only to extreme and very urgent cases, the
result may be that, in future, the Government may go on issuing Ordinances giving Lok Sabha
no option but to rubber-stamp the Ordinances.
I may invite your attention to one more aspect, namely, the financial aspect involved
in the amendment to the Indian Income-tax Act, 1922. It is not directly a taxation measure,
but it is intended for the purpose of collection of taxes. Indirectly, it affects the finances and
it would be a wrong precedent to have an Ordinance for such a purpose.
The Prime Minister, in his reply on 19 July 1954, wrote:
We have been reluctant to issue Ordinances and it is only when we have felt compelled
to do so by circumstances that we have issued them. You will appreciate that it is the
responsibility of the Government to decide what steps should be taken in a particular contingency.
The Constitution itself has provided for the issue of Ordinances where such necessity arises,
and that discretion has to be exercised by Government.
We have issued in the past a very limited number of Ordinances and we have always
placed before Parliament the reasons for having issued each one of them.
I am myself unable to see why this should be considered undemocratic. Of course, this
power, like any other power, may be abused and Parliament will be the ultimate judge as to
whether the use of this power has been right or wrong.
Ordinances and Proclamations by the President
683
Successive Speakers also did not fail to criticise the Government when occasions
warranted for its frequent and large-scale resort to executive legislation by Ordinances.
On 15 November 1971, when the Deputy Minister of Parliamentary Affairs
sought to lay on the Table copies of the thirteen Ordinances issued by the President
during the preceding inter-session period, an objection was raised that never before
in the history of Parliament, so many Ordinances were issued during any particular
inter-session period. Thereupon, the Speaker observed:
I agree with you that so many Ordinances should not have been issued… I personally
think it is not a light matter to be ignored. Certain observations have been made by my
predecessor Shri Mavalankar based on very sound judgment. I would invite the attention of
the Government to see that there is real emergency or urgency, justifying the issue of an
Ordinance3.
When some members again raised the matter on 22 November 1971, particularly
in regard to the Ordinances which had imposed certain levies, the Speaker observed:
If you think that there should be some distinction between financial and non-financial,
tax and non-tax Ordinances, there is nothing in my knowledge on which I can base my ruling.
All I can say is that I do not approve of an Ordinance just at the time when the House is about
to meet4.
Again, on 13 November 1973 the Speaker observed:
Ordinances by themselves are not very welcome, specially so when the date (for session
of the House) is very clear. It is not only clear but is also near. In such cases, unless there are
very special reasons, Ordinances should be avoided. This is the ruling which I gave on
22 November 1971—and the same was given by my predecessors5.
On objection being raised regarding promulgation of Ordinances on the eve of
Parliament Session, the Speaker, on 17 November 1980 reiterated:
My distinguished predecessors have made observations in regard to these matters from
time to time in the past. They did not approve of the issue of Ordinances on the eve of
Parliament Session. I agree with them6.
Promulgation of Ordinances
If at any time, except when both Houses of Parliament are in session7, the
President is satisfied that circumstances exist which render it necessary for him to
For Speaker Mavalankar’s observations on the floor of the House regarding promulgation of
Ordinances, see P. Deb. (I), 22-2-1952, cc. 280-81 and L.S. Deb. (II), 19-12-1953, cc. 2580-82.
A suggestion was made by some members to set up a Parliamentary Committee which might
be consulted before an Ordinance was promulgated or which might review an Ordinance already
issued—L.S. Deb., 16-2-1954, cc. 12-32. The suggestion was considered by the Rules Committee
but the question of appointment of the Committee was subsequently postponed—Min. (RC-1LS),
17-12-1953 and 21-9-1954.
3.
L.S. Deb., 16-11-1971, cc. 232-34.
4.
Ibid., 22-11-1971, cc. 275-76.
5.
Ibid., 13-11-1973. c. 254; also see 7-12-1973, cc. 221-37; 9-7-1979, cc. 283-91.
6.
Ibid., 17-11-1980, c. 387.
7.
Instances of Ordinances issued when the Lok Sabha was in session but the Rajya Sabha was not
in session and no Bill on the subject matter of Ordinance was pending in either House of
Parliament—
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Practice and Procedure of Parliament
take immediate action, he may promulgate such Ordinances as the circumstances
appear to him to require8.
An Ordinance so promulgated by the President has the same force and effect
as an Act of Parliament, but every such Ordinance has to be laid before both the
Houses of Parliament and it ceases to operate at the expiration of six weeks from the
reassembly of Parliament, or, if before the expiration of that period resolutions
disapproving it are passed by both Houses, then, upon the passing of the second of
those resolutions. It can also be withdrawn at any time by the President9.
Since an Ordinance has the force of law, the validity of the Ordinance cannot
be decided by a ruling of the Speaker10.
The Ordinance making power of the President arises as soon as either House
is prorogued. If an Ordinance is promulgated before the order of prorogation is made
and notified, the Ordinance is void11. The action of the President in proroguing
The Calcutta Tramways (Taking over of Management) Amendment Ordinance, 1971, promulgated
by the President on 17 July 1971, the Coal Mines (Nationalisation) Amendment Ordinance, 1976
promulgated by the President on 29 April 1976; the National Security (Amendment) Ordinance,
1984, promulgated by the President on 5 April 1984; the Tea Companies (Acquisition and Transfer
of Sick Tea Units) Ordinance, 1985 promulgated by the President on 8 April 1985; and the
Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Ordinance,
1986, promulgated by the President on 19 April 1986.
Instances of Ordinances issued when the Lok Sabha was in session but the Rajya Sabha was
not in session and Bill on the subject matter was pending before Parliament—
The Travancore-Cochin Appropriation (Vote on Account) Ordinance, 1956 promulgated by the
President on 31 March 1956 (Bill passed by the Lok Sabha on 29 March 1956); the Essential
Services Maintenance Ordinance, 1957 promulgated by the President on 7 August 1957 (Bill
passed by the Lok Sabha on 6 August 1957); and the Armed Forces (Special Powers) Continuance
Ordinance, 1964 promulgated by the President on 2 April 1964 (Bill introduced in the Lok Sabha
on 25 March 1964).
Instances of Ordinances issued after the Rajya Sabha was prorogued and the Lok Sabha
adjourned sine die but had not been prorogued—
The Terrorists and Disruptive Activities (Prevention) Ordinance, 1987 promulgated by the
President on 23 May 1987; the National Security (Amendment) Ordinance, 1987 promulgated by
the President on 9 June 1987; and the Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Amendment) Ordinance, 1987, promulgated by the President on 2 July
1987.
8.
Art. 123(1), Between 1950 and April 1999 in all 559 Ordinances [including 2 Ordinances issued
by the President under article 213(1) of the Constitution as lie had then assumed to himself the
power of the Governor of the State of Punjab] were necessitated; see also Presidential Ordinances,
1950-2009, Lok Sabha Secretariat, New Delhi, 2009.
9.
Art. 123(2), The Essential Services Maintenance Ordinance, 1957 promulgated by the President
on 7 August 1957 was revoked by the President on 12 August 1957; the Delhi Administration
(Amendment) Ordinance, 1977 promulgated by the President on 7 February 1977, was withdrawn
by the Vice-President acting as President on 21 April 1977, and the Ram Janambhoomi-Babri
Masjid (Acquisition of Area) Ordinance, 1990 promulgated by the President on 19 October 1990
was withdrawn by the Ram Janambhoomi-Babri Masjid (Acquisition of Area) Withdrawal
Ordinance, 1990 promulgated on 23 October 1990.
10.
State of Punjab v. Satya Pal Dang, A.I.R. 1969 S.C. 903.
11.
Bidya Chaudhary v. Province of Bihar, A.I.R., 1950, Patna 19.
Ordinances and Proclamations by the President
685
Parliament simply for the purpose of making an Ordinance cannot be challenged12
and the courts have no power to question the jurisdiction either as to the occasion or
purpose or the subject matter of an Ordinance even if the Ordinance is not made in
good faith, except on the justiciable ground of exceeding the legislative powers
conferred on the Union by the Constitution13.
The President may issue an Ordinance to enforce the provisions of a Bill
introduced in, and pending before, a House or one of its Committees14, or to enforce
the provisions of a Bill already passed by one House but not yet passed by the other
House15 or on an entirely new matter to be replaced subsequently by a Bill to be
12.
In re. Veerabhadra, A.I.R. 1950, Madras 253. For corresponding action of a Governor, see Viswanath
Aggarwal v. State of Uttar Pradesh, A.I.R. 1956, Allahabad 557, Prem Narain Tandon Vs. State
of Uttar Pradesh, A.I.R. 1960, Allahabad 205.
13.
Jnan Prasanna v. West Bengal, (1948), 53 C.W.N. 27(70) (F.B.); see also art. 123(3). The Allahabad
High Court in Babu Ram Sharma Vs. State (1961 A.L.J. 837) had, as early as in 1961, held:
The satisfaction of the President regarding the existence of circumstances that render it
necessary for him to take immediate action is a subjective matter which cannot be probed or
questioned in a court of law; and the precise nature of the action that he may decide to take
in such circumstances is also left to his discretion and cannot be challenged.
As regards the Ordinance making power of the Governor, the Supreme Court in M/s. S.K. G. (P)
Ltd. v. State of Bihar (A.I.R. 1974 S.C. 1533) observed:
It is... well-settled that the necessity of immediate action and of promulgating an Ordinance is a
matter purely for the subjective satisfaction of the Governor. He is the sole judge as to the
existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not
a justiciable matter. It cannot be questioned on ground of error of judgement or otherwise in court.
14.
Instances of Ordinances issued in terms of Bill introduced and pending in the Lok Sabha or a
Committee of the House—
The Sugar Crisis Enquiring Authority Ordinance, 1950; the Press (Objectionable Matters)
Amendment Ordinance, 1954; the Railway (Employment of Members of Armed Forces) Ordinance,
1965; the Criminal Law Amendment (Amendment) Ordinance, 1966; the Requisitioning and
Acquistion of Immovable Property (Amendment) Ordinance, 1968; the Indian Patents and Designs
(Amendment) Ordinance, 1968; the Customs (Amendment) Ordinance, 1969; the Indian Railways
(Amendment) Ordinance, 1969; the National Capital Region Planning Board Ordinance, 1984; the
Income Tax (Amendment), Ordinance, 1997; the Essential Commodities (Special Provisions)
Ordinance, 1997; the National Capital Territory of Delhi Laws (Special Provisions) Second
Ordinance, 2007; the High Court and Supreme Court Judges (Salaries and Conditions of Service)
Amendment Ordinance, 2009; and the Criminal Law (Amendment) Ordinance, 2013.
Instances of Ordinances issued in terms of Bill introduced and pending in the Rajya Sabha or a
Committee of the House—
The Public Premises (Eviction of Unauthorised Occupants) Amendment Ordinance, 1968;
the Essential Commodities (Amendment) Continuance Ordinance, 1969; the Calcutta Port
(Amendment) Ordinance, 1970; the Delhi University (Amendment), Ordinance, 1970; the
Cable Television Networks (Regulation) Ordinance, 1994; the Employees Provident Funds and
Miscellaneous Provisions (Amendment) Ordinance, 1997; the Payment of Gratuity (Amendment)
Ordinance, 1997; and the National Commission for Minority Educational Institutions
(Amendment) Ordinance, 2006—also see fn. 7, supra.
15.
Instances of Ordinances issued in terms of Bill passed by one House but not yet passed by the
other House—
The Merchant Shipping (Amendment) Ordinance, 1966; the Arms (Amendment) Ordinance, 1983;
the Bharat Petroleum Corporation Limited (Determination of Conditions of Services of Employees)
Ordinance, 1988; and the National Highways (Amendment) Ordinance, 1992—also see fn. 7,
supra.
Practice and Procedure of Parliament
686
brought before the House or for a purpose not requiring permanent legislation16.
Bill Seeking to Replace Ordinance
Ordinances promulgated by the President are required to be laid before both
Houses of Parliament17. Normally, Ordinances are laid on the first day of the sitting
of the House held after the promulgation of the Ordinances on which formal business
is transacted. In the case of an Ordinance containing the provisions of a Bill pending
before the House with or without modifications, a statement explaining the reasons
for promulgation of the Ordinance is also laid along with the Ordinance18 and copies
thereof are circulated to members.
Ordinarily, an Ordinance promulgated in respect of a State under President’s
rule is also to be laid on the Table at the first sitting of the House held after the issue
of the Proclamation but any delay in doing so cannot stand in the way of its being
laid on the Table later. However, the reason for the delay in laying the Ordinance has
to be explained to the House19. Ordinances promulgated by the Governor of a State
under President’s rule are also laid on the Table in the same manner20. An Ordinance
promulgated by the Governor of a State before issue of the Proclamation by the
President in relation to that State can be laid before the House in case it could not
be laid before the State Legislature21.
If the Government wants to continue the provisions of an Ordinance for a
longer period or to make it permanent, a Bill to replace it is brought forward. Where
in respect of a State under President’s rule, Parliament has delegated the authority to
the President to make Acts for the State, the question of replacing the Ordinances
issued by the President or the Governor in relation to the State by Bills introduced
in Parliament does not arise. The Ordinances are replaced by President’s Acts22.
Whenever a Bill seeking to replace an Ordinance with or without modification
is introduced in the House, a statement explaining the circumstances which had
16.
Certain examples are—The Police (Incitement to Disaffection) (Gujarat Second Amendment)
Ordinance, 1980; The Essential Services Maintenance (Maharashtra) Ordinance, 1980; the Gujarat
Essential Services Maintenance (Amendment) Ordinance, 1980; the Essential Services Maintenance
(Orissa) Ordinance, 1980; the Representation of the People (Amendment) Ordinance, 1985; and
the State of Mizoram (Amendment) Ordinance, 1986. For other instances, see ‘Presidential
Ordinances’ by Lok Sabha Secretariat, 2009.
17.
Art. 123(2).
18.
Rule 71(2). L.S. Deb., 21-8-1962, cc. 3206-07.
19.
L.S. Deb., 23-8-1966, cc. 6437-49.
20.
For example, the Punjab Panchayat Samities and Zila Parishads (Temporary Supersession)
Amendment Ordinance, 1983 and the Gangtok Municipal Corporation (Amendment) Ordinance,
1984 were such Ordinances.
21.
L.S. Deb., 23-8-1966, cc. 6437-49.
22.
See, for example, the Punjab Requisitioning of Immovable Property (Amendment and Validation)
Ordinance, 1951; the East Punjab Public Safety (Amendment) Ordinance, 1951; the Code of
Criminal Procedure (Assam) Amendment Ordinance, 1980; the Uttar Pradesh Co-operative Societies
(Amendment) Ordinance, 1993; the Himachal Pradesh Electricity (Duty) Amendment Ordinance,
1993; the Madhya Pradesh Lottery Pratibandh Ordinance, 1993.
Ordinances and Proclamations by the President
687
necessitated immediate legislation by Ordinance is laid on the Table along with the
Bill23 and copies of the statement are circulated to members. It is not obligatory under
the Rules of the House to lay a statement explaining the reason for promulgation of
an Ordinance, if a Bill replacing the Ordinance is introduced in the Rajya Sabha. If
the Minister seeks to lay the statement, it can be laid as an ordinary paper. Whenever
a Bill24 seeking to replace an Ordinance with modifications of the provisions of the
Ordinance is introduced in the House, the modifications contained in the Bill are
required to be explained in a memorandum appended to the Bill25. If two or more
Ordinances relating to allied matters are intended to be replaced, a single Bill can be
introduced26.
It has been held that refusal of leave to introduce a Bill seeking to
replace an Ordinance does not amount to disapproving the Ordinance and the
Ordinance does not cease to operate27.
Statutory Resolutions seeking Disapproval of Ordinances
If notice28 of a statutory resolution given by a private member seeking disapproval
of an Ordinance is admitted by the Speaker, time has to be provided by Government
23.
Rule 71(1); L.S. Deb., 21-8-1962, cc. 3206-07.
24.
See, for example, the Public Premises (Eviction of Unauthorised Occupants) Amendment Ordinance,
1968—L.S. Deb., 22-7-1968; the State of Nagaland (Amendment) Ordinance, 1981—L.S. Deb.,
27-8-1981: the Punjab Panchayat Samities and Zila Parishads (Temporary Supersession) Amendment
Ordinance, 1983—L.S. Deb., 6-12-1983; the General Insurance Business (Nationalisation)
Amendment Ordinance, 1984; the National Capital Region Planning Board Ordinance, 1984; the
Sugar Undertakings (Taking Over of Management) Amendment Ordinance, 1984; the Gangtok
Municipal Corporation (Amendment) Ordinance, 1984—L.S. Deb., 18-1-1985; the Bhopal Gas
Leak Disaster (Processing of Claims) Ordinance, 1985—L.S. Deb., 22-3-1985; and the
Requisitioning and Acquisition of Immovable Property (Amendment) Ordinance, I985—L.S. Deb.,
25-3-1985.
25.
Certain recent examples are—The Foreign Contribution (Regulation) Amendment Bill, 1985; the
Bhopal Gas Leak Disaster (Processing of Claims) Bill, 1985, as introduced in the Rajya Sabha;
the Motor Vehicles (Amendment) Bill, 1986, as introduced in the Rajya Sabha; the Administrative
Tribunals (Amendment) Bill, 1986, as introduced in the Rajya Sabha; the Coal Mines Nationalisation
Laws (Amendment) Bill, 1986; the Terrorists and Disruptive Activities (Prevention) Bill, 1987; the
Finance (Amendment) Bill, 1987; the Acquisition of Certain Area at Ayodhya Bill, 1993;
the New Delhi Municipal Council Bill, 1994; the Patents (Amendment) Bill, 1995; and the
Criminal Law (Amendment) Bill, 2013.
26.
L.S. Deb., 16-11-1962, cc. 2030-35. For example, the Companies (Temporary Restrictions on
Dividends) Bill, 1974 replaced the Companies (Temporary Restrictions on Dividends) Ordinance,
1974, and the Companies (Temporary Restrictions on Dividends) Amendment Ordinance, 1974;
the Maintenance of Internal Security (Amendment) Bill 1975 replaced the Maintenance of Internal
Security (Amendment) Ordinance, 1975 and the Maintenance of Internal Security (Second
Amendment) Ordinance. 1975; the Payment of Bonus (Second Amendment) Bill, 1985 replaced
the Payment of Bonus (Amendment) Ordinance, 1985 and the Payment of Bonus (Second
Amendment) Ordinance, 1985.
27.
Bhupendra Kumar Bose Vs. State of Orissa, A.I.R. 1960, Orissa 46.
28.
The notice is to be given after the summons for the session has been issued. Notices received
during the interregnum, i.e. between dates of prorogation of a session and issue of summons for
the next session are not treated valid for the next session and members are advised to give fresh
notices after issue of summons. On 1 January 1970, three members gave notices of Statutory
Resolutions for disapproval of the Essential Commodities (Amendment) Continuance Ordinance,
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Practice and Procedure of Parliament
for discussion thereof29. However, the resolution and a motion for consideration of
a Government Bill seeking to replace that Ordinance may be discussed together.
Earlier, when this was permitted by the Speaker, the resolution after discussion, was
put to vote first; because of the view that if the resolution was adopted, it would mean
disapproval of the Ordinance and the Bill would automatically fall through30. If the
resolution was negatived, the motion for consideration of the Bill was then put to vote
and further stages of the Bill were proceeded with31.
However, in the year 2002, in view of the opinion of the Ministry of Law, it was
decided that that the motion for consideration of the Bill seeking to replace an
Ordinance might be proceeded with even if the Statutory Resolution seeking disapproval
of the Ordinance was adopted by the House32.
Similarly, a resolution seeking disapproval of an Ordinance and a motion on a
cognate matter can be discussed together33. Where no Bill seeking to replace an
1969 promulgated on 30 December 1969. As the summons for the next session had not been
issued, the notices were not treated valid and they were advised in writing to give fresh notices
after the issue of summons.
29.
On 8 August 1957, a member gave notice of a resolution seeking disapproval of the Essential
Services Maintenance Ordinance, 1957. Since notice of the resolution was given under a
constitutional provision, the Speaker decided that such statutory resolutions should be treated
differently from the ones tabled by private members in the ordinary course under Rule 28 and time
for discussion of statutory resolutions should be provided by Government.
30.
During the Tenth Lok Sabha, a Statutory Resolution seeking disapproval of the Code of Criminal
Procedure (Amendment) Ordinance, 1991 (No. 4 of 1991) promulgated by the President on
2 March 1991 was adopted on 5 August 1991 in Rajya Sabha and the Bill to replace the said
Ordinance which was under consideration in the Rajya Sabha fell through.
In the Eleventh Lok Sabha, a Statutory Resolution seeking disapproval of the Presidential and
Vice-Presidential Elections (Amendment) Ordinance, 1997 (No. 13 of 1997) promulgated by the
President on 5 June 1997 was adopted on 7 August 1997 in the Rajya Sabha and the Bill seeking
to replace the said Ordinance which was under consideration in the Rajya Sabha fell through. The
Bill was again introduced in the Lok Sabha on 12 August 1997 as the Presidential and
Vice-Presidential Elections (Second Amendment) Bill, 1997.
31.
L.S. Deb., 22-11-1957, cc. 1894-97; 21-8-1974, c. 283; 22-8-1974; cc. 320-21.
32.
After prorogation of Eighth Session of Thirteenth Lok Sabha, the Prevention of Terrorism (Second)
Ordinance, 2001 (No. 12 of 2001) was promulgated by the President on 30 December 2001. The
Prevention of Terrorism Bill, 2002, which sought to replace the ordinance, was introduced in Lok
Sabha on 8 March 2002. The Bill was passed by Lok Sabha after the Statutory Resolution seeking
disapproval of the ordinance was negatived by Lok Sabha on 18 March 2002. While the Statutory
Resolution was yet to be discussed in Rajya Sabha, a reference was made by Lok Sabha Secretariat
to the Ministry of Law to furnish opinion as to whether the Bill might be treated as rejected by
the other House within the meaning of article 108(1)(a) of the Constitution in case the Statutory
Resolution seeking disapproval of the ordinance is adopted by Rajya Sabha. The Ministry of Law
opined that there was no specific provision in the Constitution dealing with the above situation.
If, however, the Statutory Resolution and the Bill were taken up separately, after the resolution was
rejected, the Bill would require to be taken up separately and voted upon. Whether the two should
be taken up together or otherwise was for the Chairman to decide. On 21 March 2002, after the
Statutory Resolution was adopted by Rajya Sabha, the motion for consideration of the Bill, as
passed by Lok Sabha, was put to vote and negatived. The Bill was accordingly treated as rejected
by Rajya Sabha.
33.
L.S. Deb., 8-8-1960, cc. 1391-1536; and 9-8-1960, cc. 1662-1800.
Ordinances and Proclamations by the President
689
Ordinance is forthcoming, the resolution seeking disapproval of the Ordinance can be
discussed separately34.
A resolution seeking to disapprove an Ordinance cannot bar the progress of a
Government Bill which seeks to replace that Ordinance35, and such a resolution
becomes infructuous after the Ordinance has been withdrawn36. The fact that an
Ordinance has been challenged in a court of law and the court issued a rule nisi to
Government is no bar to taking up the Bill seeking to replace that Ordinance37.
As regards the scope of amendments to a resolution seeking disapproval of an
Ordinance, it has been ruled that an amendment having the effect of approving the
Ordinance is not permissible. Further, an amendment is out of order if it contains
argument.
Ordinance for Appropriation out of the Consolidated Fund
An Ordinance for the appropriation of any money out of the Consolidated Fund
is invalid if the related Demands for Grants have not been placed before the
Lok Sabha and considered and assented to by the House38.
According to existing practice, for the appropriation of money for a State, the
administration of which has been taken over by the President under a Proclamation
issued by him, the budget for that State, is not certified by Ordinance. The underlying
principle is that no money can be spent out of the Consolidated Fund without the
sanction of the Parliament. Hence if a contingency arises, for passing an Appropriation
Bill for such a State when the Rajya Sabha is not in session, that House is specially
summoned for this purpose39.
However, in respect of the State of Meghalaya, which was under the President’s
rule, Ordinances seeking appropriation of moneys were promulgated without prior
approval of the related Demands40 by Lok Sabha.
Proclamations
The Constitution contemplates three types of emergencies and, correspondingly,
three kinds of Proclamations which the President can issue:
34.
The Essential Services Maintenance Ordinance, 1960—L.S. Deb., 9-8-1960, c. 1794.
35.
L.S. Deb., 24-5-1957, cc. 1890-1900.
36.
Ibid., 11-9-1957, cc. 13269-81.
37.
Case of the Metal Corporation of India (Acquisition of Undertaking) Bill—L.S. Deb., 22-11-1965,
cc. 3125-29; case of the Indian Railways (Amendment) Bill, 1968—L.S. Deb., 15-11-1968,
cc. 270-71.
38.
L.S. Deb., 4-3-1961, cc. 2929-33; 6-3-1961, c. 3237; 10-3-1961, cc. 4188-92; 13-3-1961,
cc. 4459-60, 4462; 14-3-1961, cc. 4779-80.
39.
This was done in the case of the Orissa Appropriation (Vote on Account) Bill—L.S. Deb., 27-31961, cc. 7339-50; 28-3-1961, cc. 7769-70; R.S. Deb., 27-3-1961, c. 33; 30-3-1961, cc. 375-89.
40.
The State of Meghalaya was brought under the President’s rule vide Proclamation dated 19 March,
2009. Two Ordinances viz., (i) The Meghalaya Appropriation (Vote on Account) Ordinance, 2009;
and (ii) The Meghalaya Appropriation Ordinance, 2009 were promulgated by the President on
31 March 2009. However, Bill replacing the above Ordinances were not introduced in Lok Sabha
as the Proclamation was revoked by a subsequent Proclamation dated 13 May 2009.
Practice and Procedure of Parliament
690
Proclamation of emergency arising out of war, external aggression or armed
rebellion41;
Proclamation issued on the failure of constitutional machinery in the States42; and
Proclamation arising out of threat to financial stability or credit of India or of any
part of the territory thereof.43
Proclamation of Emergency
If the President is satisfied that a grave emergency exists whereby the security
of India or of any part of the territory thereof is threatened whether by war or external
aggression or armed rebellion, he may, by proclamation, make a declaration to that
effect in respect of the whole of India or of such part of the territory thereof as may
be specified in the Proclamation44. The President’s satisfaction about the existence of
emergency need not be stated in the Proclamation. In this connection, the Supreme
Court observed:
Article 352 requires only a declaration of emergency threatening the
security of India by one of the causes mentioned. The power to make the
declaration can no doubt be exercised only when the President is satisfied
about the emergency, but the article does not require the President’s satisfaction
to be stated in the declaration45.
The only condition precedent for the President to issue a Proclamation of
Emergency or a Proclamation varying one in operation is that the decision of the
Union Cabinet in that behalf must be communicated to the President in writing before
the issue of the Proclamation46.
The Proclamation of Emergency may be made before the actual
occurrence of war or of any external aggression or armed rebellion if the
President is satisfied that there is imminent danger thereto47.
A Proclamation of Emergency may be varied or revoked by a subsequent
Proclamation48.
41.
Art. 352.
42.
Art. 356.
43.
Art. 360.
44.
Articles 352 and 356 shall apply to the State of Jammu and Kashmir with such modifications as
are contained in sub-clause (13) of Clause 2 of the Constitution (Application to Jammu and
Kashmir) Order, 1954.
45.
P.L. Lakhanpal v. Union of India, A.I.R. 1967 S.C. 243.
Before enactment of the Constitution (Forty-fourth) Amendment Act, 1978, the satisfaction of the
President as to the declaration of emergency under article 352 was final and conclusive and the
courts had no jurisdiction to entertain any question on any ground regarding the validity of the
issue of or continuance in operation of a Proclamation of Emergency. S. 38(d) of the said Act
omitted the then existing art. 352(5) which precluded judicial review.
46.
Art. 352(3).
47.
Art. 352(1).
48.
Art. 352(2). The Proclamation issued on 26 October 1962, was revoked on 10 January 1968.
Ordinances and Proclamations by the President
691
The power of the President to declare emergency includes the power to
issue different Proclamations on different grounds, being war or external
aggression or armed rebellion or imminent danger of war or external aggression
or armed rebellion, whether or not there is a Proclamation already in existence
and in operation49.
A Proclamation, after it is issued, has to be laid before each House of Parliament50
and except in the case of a Proclamation revoking a previous Proclamation, it ceases
to operate at the expiration of one month unless before the expiration of that period
it has been approved by resolutions of both Houses of Parliament51. If any such
Proclamation is issued at a time when the Lok Sabha has been dissolved or its
dissolution takes place during the period of one month referred to above, and if a
resolution approving the proclamation has been passed by the Rajya Sabha, but no
resolution with respect to such Proclamation has been passed by the Lok Sabha
before the expiration of that period, the Proclamation ceases to operate at the expiration
of thirty days from the date on which the Lok Sabha first sits after its reconstitution,
unless before the expiration of the period of thirty days a resolution approving the
Proclamation has been passed by the Lok Sabha52.
A Proclamation so approved shall, unless revoked, cease to operate on the
expiration of a period of six months from the date of passing of the second of the
resolutions approving the Proclamation.
If and so often resolutions approving the continuance in force of such a
Proclamation is passed by the Houses of Parliament, the Proclamation shall, unless
revoked, continue in force for a further period of six months from the date on which
it would otherwise have ceased to operate. In case the dissolution of the Lok Sabha
takes place during the period of six months and a resolution approving continuance
in force of a Proclamation has been passed by the Rajya Sabha, the Proclamation
shall cease to operate at the expiration of thirty days from the date on which the
Lok Sabha first sits after its reconstitution unless before the expiration of the period
49.
Art 352(9).
50.
Art. 352(4). The Proclamation of Emergency issued on 26 October 1962, was laid on the Table
of both Houses of Parliament on 8 November 1962, the first day of the commencement of the
session of both the Houses—L.S. Deb., 8-11-1962, c. 97; R.S. Deb., 8-11-1962, c. 190. The
Statutory Resolution seeking approval of Proclamation was adopted by Lok Sabha on 14 November
1962.
Following Pakistan’s attack on India on 3 Decemeber 1971, a Proclamation of Emergency was
issued on that day. It was laid on the Table of both Houses of Parliament on 4 December 1971.
The Statutory Resolution seeking approval of proclamation was adopted by Lok Sabha on
4 December 1971. The Proclamation of Emergency issued on 25 June 1975, was laid on the
Table of both Houses of Parliament on 21 July 1975 and Statutory Resolution seeking approval
of Proclamation was adopted by Lok Sabha on 23 July 1975.
51.
Art. 352(4).
52.
Art. 352(4), Proviso; L.S. Deb., 8-11-1962, c. 196; 14-11-1962, c. 1672; R.S. Deb., 8-11-1962,
c. 196; 13-11-1962, c. 993; L.S. Deb., 4-12-1971, c. 37; R.S. Deb., 4-12-1971, c. 46; 22-7-1975,
c. 124; L.S. Deb., 23-7-1975, c. 40.
Practice and Procedure of Parliament
692
of thirty days, a resolution approving the continuance in force of the Proclamation has
also been passed by the Lok Sabha53.
The resolutions for approval of or for further continuance in force of a
Proclamation of Emergency may be passed by either House of Parliament only by a
majority of the total membership of that House and by a majority of not less than twothirds of the members present and voting in that House54.
When a notice in writing of a resolution seeking disapproval of a Proclamation
or its continuance in force, signed by not less than one-tenth of the total number of
members of the Lok Sabha has been given to the Speaker, if the Lok Sabha is in
session, or, to the President, if it is not in session, a special sitting of the Lok Sabha
shall be held within fourteen days from the date of receipt of the notice for considering
the resolution55.
A Proclamation of Emergency shall be revoked by the President if the
Lok Sabha passes a resolution disapproving the Proclamation or its continuance in
force56.
Effects of Proclamation of Emergency: While a Proclamation of Emergency is
in operation, the executive power of the Union extends to the giving of directions to
any State as to the manner in which the executive power thereof is to be exercised;
and the power of Parliament to make laws with respect to any matter, during the
period of Emergency, includes the power to make laws conferring powers and imposing
duties, or authorising the conferring of powers and the imposition of duties, upon the
Union or officers and authorities of the Union as respects that matter, notwithstanding
that it is one which is not enumerated in the Union List.
Where a Proclamation of Emergency is in operation only in any part of the
territory of India, the executive power of the Union to give directions and the power
of Parliament to make laws shall also extend to any State other than a State in which
or in any part of which the Proclamation is in operation if, and insofar as, the security
of India or any part of the territory thereof is threatened by activities in or in relation
to the part of the territory of India in which the Proclamation is in operation57.
The President may, while a Proclamation of Emergency is in operation, by
order direct that all or any of the provisions of the Constitution which provide for the
distribution of revenues between the Union and the States58 shall for such period, not
extending in any case beyond the expiration of the financial year in which such
Proclamation ceases to operate, as may be specified in the order, have effect subject
to such exceptions or modifications as he thinks fit. Every such order has to be laid
before each House of Parliament as soon as may be after it is made59.
53.
Art. 352(5).
54.
Art. 352(6).
55.
Art. 352(8).
56.
Art. 352(7).
57.
Art. 353.
58.
Arts. 268 to 279.
59.
Art. 354. No such order has so far been issued by the President.
Ordinances and Proclamations by the President
693
While a Proclamation of Emergency on account of war or external aggression
is in operation, the State gets power to make any law or to take any executive action
notwithstanding the provisions contained in article 19 guaranteeing certain fundamental
rights to citizens. But any law so made, to the extent of the incompetency, ceases to
have effect as soon as the Proclamation ceases to operate, except as respects things
done or omitted to be done before the law so ceases to have effect60. During the
Proclamation of Emergency, article 19 is suspended. But it does not authorise the
taking of detrimental executive action during the emergency affecting the fundamental
rights in article 19 without any legislative authority or in purported exercise of power
conferred by any pre-emergency law which was invalid when enacted. Every act done
by the Government or by its officers must, if it is to operate to the prejudice of any
person, be supported by legislative authority61.
The President may, by order, declare that the right to move any court for the
enforcement of such of the fundamental rights as may be mentioned in the order
except the rights under articles 20 and 21, and all proceedings pending in any court
for the enforcement of the rights so mentioned shall remain suspended for the period
during which the Proclamation is in force or for such shorter period as may be
specified in the order. Such an order may extend to the whole or any part of the
territory of India.
However, where a Proclamation of Emergency is in operation only in a part of
the territory of India, any such order does not extend to any other part of the territory
of India unless the President, being satisfied that the security of India or any part of
the territory thereof is threatened by activities in or in relation to the part of the
territory of India in which the Proclamation is in operation, considers such extension
to be necessary. Every such order has to be laid before each House of Parliament as
soon as may be after it is made62.
60.
Art. 358. The Defence of India Act, 1962–the Defence of India Rules, 1962, the Defence and
Internal Security of India Act, 1971 and the Defence and Internal Security of India Rules, 1971,
made under art. 358, imposed certain restrictions on the fundamental rights guaranteed in article
19. For effects of the Proclamation of Emergency, see State of Madhya Pradesh v. Thakur Bharat
Singh. A.I.R. 1967 S.C. 1170; Mohd. Yaqub v. State of Jammu and Kashmir, A.I.R. 1968 S.C. 765;
P. Venkalaseshamma v. State of Andhra Pradesh, A.I.R. 1976 Andhra Pradesh 1; Krishna Kumar
Modi v. Union of India, A.I.R. 1976 Calcutta 26.
61.
Bennett Coleman and Co. Ltd. v. Union of India, A.I.R. 1973 S.C. 106; Shree Meenakshi Mills
Ltd. v. Union of India, A.I.R. 1974 S.C. 366; Sri Laxmi Touring Talkies v. The State of Karnataka,
A.I.R. 1975 Karnataka 37; Partap Singh v. State of Punjab, A.I.R. 1975 Punjab and Haryana, 324.
62.
Art. 359.
For interpretation of articles 352 and 359 and validity of the order and the Defence of India Act,
1962, and rules framed thereunder, see the judgement of the Supreme Court in Makhan Singh
Tarsikka v. The State of Punjab, A.I.R. 1964 S.C. 381.
In view of the above judgement of the Supreme Court, doubts arose as to the effect of an order
made under article 359. To remove these doubts, a Bill—the Constitution (Eighteenth Amendment)
Bill 1964, inserting a new clause in article 359, was introduced in the Lok Sabha on 24 April
1964. However, in view of the criticism of the Bill by members at the time of its introduction,
Government decided not to proceed with the Bill—L.S. Deb., 28-4-1964.
Practice and Procedure of Parliament
694
During the continuance of the Proclamation of Emergency, the validity of an
order suspending the right to move any court for enforcement of any of the fundamental
rights cannot be challenged63.
While an Order suspending the right to move any court for the enforcement of
any fundamental rights conferred by Part III of the Constitution except the rights
under articles 20 and 21 is in operation, nothing in that Part conferring those rights
restricts the power of the State to make any law or to take any executive action, which
the State would, but for the provisions contained in that Part, be competent to make
or to take, but any law so made, to the extent of the incompetency, ceases to have
effect as soon as the order aforesaid ceases to operate, except as respects things done
or omitted to be done before the law so ceases to have effect64.
The life of the Lok Sabha may, while a Proclamation of Emergency is in
operation, be extended beyond its normal period by Parliament by law for a period
not exceeding one year at a time and not extending in any case beyond a period of
six months after the Proclamation has ceased to operate65.
Proclamation of Emergency in relation to Punjab
The Constitution (Fifty-ninth Amendment) Act, 1988, which came into
force on 30 March 1988, inserted article 359A in the Constitution containing
special provisions for issuing a Proclamation of Emergency in respect of Punjab.
The Act empowered the President to issue a Proclamation of Emergency in
respect of the whole or any part of Punjab if the integrity of India was threatened
by internal disturbance in the whole or any part of Punjab. During the operation
of a Proclamation of Emergency under the Act, the President was empowered
to suspend all fundamental rights except the rights conferred by article 20.
This provision was to remain in force for a period of two years from the
commencement of the Act. However, this Act was repealed by the Constitution
63.
K.K. Modi v. Union of India, A.I.R. 1976 Calcutta 26.
64.
Art. 359 (1 A).
65.
Art. 83(2), Proviso.
While the Proclamations of Emergency issued on 3 December 1971 and 25 June 1975 were
in operation:
(i) The duration of the Fifth Lok Sabha, which was due to expire on 18 March 1976, was
extended for a period of one year by the enactment of the House of the People (Extension
of Duration) Act, 1976. The House of the People (Extension of Duration) Amendment Act,
1976, extended the duration of the Fifth Lok Sabha for a further period of one year, i.e. upto
18 March 1977. However, the Fifth Lok Sabha was dissolved on 18 January 1977.
(ii) The duration of the Legislative Assembly of Kerala, which was in normal course to expire
on 21 October 1975, was extended for a period of six months by the enactment of the Kerala
State Legislative Assembly (Extension of Duration) Act, 1975; the duration of the Assembly
was again extended for a further period of six months by the enactment of the Kerala
Legislative Assembly (Extension of Duration) Amendment Act, 1976. The Kerala Legislative
Assembly (Extension of Duration) Second Amendment Act, 1976 extended the duration of
the Assembly for a further period of six months with effect from 22 October 1976. On
22 March 1977, the Assembly was dissolved and a new House, elected after the poll, was
formally constituted on the same day.
Ordinances and Proclamations by the President
695
(Sixty-third Amendment) Act, 1989 which received the assent of the President
on 6 January 1990.
Proclamation on Failure of Constitutional Machinery in States
It is the duty of the Union to ensure that the government of every State
is carried on in accordance with the provisions of the Constitution 66 .
If the President, on receipt of a report 67 from the Governor of a State or
otherwise68, is satisfied that a situation has arisen in which the government of the
State cannot be carried on in accordance with the provisions of the Constitution,
the President may by Proclamation:–
66.
Art. 355.
Under the Government of India Act, 1935, the Governor-General, in case of failure of the
constitutional machinery of the Federation, could assume all or any of the powers vested in or
exercisable by any federal body or authority vide section 45 of the Act. This section was not
adopted by the India (Provisional Constitution Order), 1947. There is no such provision in the
Constitution; the President has no power to suspend the constitutional machinery at the Union.
67.
In the following cases the courts held that Governor’s decision and report are not justiciable
(Bijayananda Patnaik v. President of India, A.I.R. 1974 Orissa 52) and that the courts, could
exercise minimal judicial review if the power was abused by the Executive, i.e., it was overtly
mala fide exercise of power or exercise on irrelevant considerations (State of Rajasthan v. Union
of India, A.I.R. 1977 S.C. 1361).
However, in S.R. Bommai v. Union of India (A.I.R. 1994 S.C. 1931), the Supreme Court held that
the exercise of power by the President under article 356(1) to issue Proclamation is justiciable and
subject to judicial review at least to the extent of examining whether the conditions precedent to
the issuance of the Proclamation have been satisfied or not. This examination will necessarily
involve the scrutiny as to whether there existed material for the satisfaction of the President that
a situation had arisen in which the Government of the State could not be carried on in accordance
with the provisions of the Constitution. Although the sufficiency or otherwise of the material
cannot be questioned, the legitimacy of inference drawn from such material is certainly open to
judicial review.
Again, the Supreme Court in Rameshwar Prasad v. Union of India (A.I.R. 2006 S.C. 980) held
that it is open to the court, in exercise of judicial review, to examine the question whether the
Governor’s report is based upon relevant material or not; whether it is made bona fide or not; and
whether the facts have been duly verified or not.
68.
On 30 April 1977, on the advice of the Union Council of Ministers, the Vice-President, acting as
the President, signed nine Proclamations under article 356 of the Constitution dissolving the
Legislative Assemblies of the States of Bihar, Haryana, Himachal Pradesh, Madhya Pradesh,
Orissa, Punjab, Rajasthan, Uttar Pradesh and West Bengal and placing them under President’s
Rule till the completion of fresh elections. This was the first time that the President had taken
action on his own, that is, without waiting for the reports of the Governors concerned.
Earlier, the Union Government had suggested to the Chief Ministers of the nine States that
they advise the respective Governors to dissolve the State Assemblies. The suggestion was not
accepted. Instead, some States filed suits and injunction applications before the Supreme Court.
The Supreme Court, however, refused to interfere and on 29 April 1977, dismissed the suits and
applications against the move to dissolve Legislative Assemblies.
On 17 February 1980, Proclamations were issued in respect of nine States, viz. Bihar, Haryana,
Himachal Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh and West Bengal
placing them under President’s Rule. There was no mention of the report of the Governor having
been received by the President.
Practice and Procedure of Parliament
696
assume to himself all or any of the functions of the Government of the
State and all or any of the powers vested in or exercisable by the Governor
or any body or authority in the State other than the Legislature of the State;
declare that the powers of the Legislature of the State shall be exercisable
by or under the authority of Parliament; and
make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of the
Proclamation, including provisions for suspending in whole or in part the
operation of any provisions of the Constitution, relating to any body or
authority in the State. (This, however, does not authorise the President to
assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend in whole or in part the operation of any provisions of
the Constitution relating to High Courts)69.
Any such Proclamation may be revoked or varied by a subsequent Proclamation
as in the case of a Proclamation of Emergency70.
The Constitution (Thirty-eighth Amendment) Act, 1975 which inserted clause 5
in article 356 had provided: “Notwithstanding anything in this Constitution, the
satisfaction of the President mentioned in clause (1) shall be final and conclusive and
shall not be questioned in any court on any ground.” However, the Constitution
(Forty-fourth Amendment) Act, 1978 substituted clause 5 and provided that a resolution
with respect to the continuance in force of a proclamation shall not be passed by
either House of Parliament unless a proclamation is in operation at the time of passing
of such resolution and the Election Commission certifies that such continuance is
necessary on account of difficulties in holding general elections to the Legislative
Assembly of the State concerned. The omission means that judicial review of the
satisfaction of the President mentioned in clause (1) is now possible71.
The power of the President to declare the failure of the constitutional machinery
in States is not ‘Executive action’ of the Government of India under article 77(1) of
the Constitution. But that does not mean that the President acts wholly independent
of the Cabinet. It is the duty of the Council of Ministers to aid and advice the
Similarly, on 31 January 1991 and 6 December 1992, Proclamations were issued in respect of the
States of Tamil Nadu and Uttar Pradesh placing them under President’s Rule. There was no
mention of any report of the Governor having been received by the President.
The Supreme Court in Rameshwar Prasad v. Union of India, supra, held that it is permissible
to reach a conclusion that the Government of the State cannot be carried on in accordance with
the Constitution even without the report of the Governor in case the President has other relevant
material for reaching the satisfaction contemplated by Art.356. The expression ‘or otherwise’ is
of wide amplitude.
69.
Art. 356 (1).
70.
Art. 356 (2). Between 1951 and December 2013, President’s Rule was proclaimed on 122 occasions
in States and Union Territories. Also see for details, President’s Rule in the States and Union
Territories, Lok Sabha Secretariat, New Delhi, 2010.
71.
S.R. Bommai v. Union of India, supra and Rameshwar Prasad v. Union of India, A.I.R. 1994 S.C.
1931.
Ordinances and Proclamations by the President
697
President on every matter relating to the discharge of his function72 and in issuing the
Proclamation for assuming to himself the functions of the Government of a State, the
President is bound to act on the aid and advice of the Council of Ministers73.
Thus, the power of the President to issue such a Proclamation is not a
discretionary power; he must act as advised by the Council of Ministers to his
satisfaction that a situation has arisen in which the Government of a State cannot be
carried on in accordance with the provisions of the Constitution74. Further, there is no
provision in the Constitution which enjoins upon the President to consult Parliament,
when it is in session, before issuing such a Proclamation75.
The Proclamations issued by the President may contain an express provision
that the Legislative Assembly of the State concerned is dissolved76. In cases where
there are still some chances for the formation of a Government, the Assembly is not
dissolved but kept ‘in a state of suspended animation’77. If subsequently it is considered
necessary to dissolve the Assembly, another Proclamation varying the former
Proclamation is issued by the President, or he may issue an Order dissolving the
Assembly78. The revocation of the Proclamation, where the Legislative Assembly of
the State has been dissolved, follows fresh elections in the concerned State.
72.
In the matter of A. Sreeramulu, A.I.R. 1974 Andhra Pradesh 106.
73.
Bijayananda Patnaik v. President of India, A.I.R. 1974 Orissa 52.
74.
Jyotirmoy Basu v. Union of India, A.I.R. 1971 Calcutta 122.
75.
L.S. Deb., 24-3-1965, cc. 5698-5705.
76.
In S.R. Bommai v. Union of India, supra, the Supreme Court held that in no case the President
shall exercise the Governor’s power of dissolving the Legislative Assembly till at least both the
Houses of Parliament have approved of the Proclamation issued by him under cl. (1) of article
356. The dissolution of the Assembly prior to the approval of the proclamation by the Parliament
under cl. (3) of the said article will be per se invalid.
77.
L.S. Deb., 31-8-1966, c. 8241.
Orissa (on 11-1-1971 and 23-3-1971), Andhra Pradesh (on 18-1-1973), U.P. (on 13-6-1973),
Gujarat (on 9-2-1974), Nagaland (on 22-3-1975), U.P. (on 30-11-1975), Gujarat (on 12-3-1976),
Manipur (on 16-5-1977) Kerala (on 21-10-1981) and Jharkhand (on 18-01-2013)
78.
For instance, on 15 April 1968, the President issued a Proclamation regarding U.P. varying the
Proclamation issued on 25 February 1968, which had not contained the provision for the dissolution
of the Assembly.
In the case of the State of Mysore, the President, under art. 174(2) (b), read with the
Proclamation, dated 27 March 1971, issued an Order on 14-4-1971 dissolving the Legislative
Assembly.
By a Proclamation issued on 23 January 1971, the President dissolved the Legislative Assembly
of Orissa which had been kept in a state of suspended animation by the Proclamation issued on
11 January 1971. The Gujarat Legislative Assembly, which had been kept in a state of suspended
animation by the Presidential Proclamation issued on 9 February 1974, was dissolved on 15
March 1974. In case of Nagaland, the President, in exercise of the power vested in him under art.
174(2) (b), read with the Proclamation dated 22 March 1975, issued under art. 356, dissolved the
Nagaland Legislative Assembly. Similarly, the Punjab Legislative Assembly, which had been kept
in a State of suspended animation by the Proclamation issued on 11 May 1987, was dissolved on
6 March 1988 by the President in exercise of the power vested in him under article 174 (2)(b),
read with the Proclamation dated 11 May 1987.
Practice and Procedure of Parliament
698
There is nothing unconstitutional if the Legislative Assembly of a State which
has been duly constituted on the issue of a notification by the Election Commission
is dissolved by a Proclamation even before the Assembly has been summoned to
meet79.
In certain cases, the Governor dissolved the Legislative Assembly of the State
concerned before sending the report to the President that the Government of the State
cannot be carried on in accordance with the provisions of the Constitution80.
Every Proclamation issued by the President has to be laid before each House
of Parliament81. While laying a Proclamation on the Table, no obligation is cast on
the Government to lay also a copy of the report of the Governor of the State concerned
in cases where the President has acted on such report82. However, a summary of the
Governor’s report or the Governor’s report in extenso has generally been laid on the
Table.
The life of a Proclamation, unless revoked earlier by the President, is two
months83. There is no provision under which Parliament can cut it short84. It is only
if the Proclamation is to continue in force beyond two months that both Houses of
Parliament have to approve of it by resolutions adopted by simple majority85.
It has been held that an amendment to the resolution seeking to approve the
President’s Proclamation is out of order if the amendment is negative in character86
79.
For details, see Chapter IX—Summoning, and Prorogation of the Houses of Parliament and
Dissolution of Lok Sabha.
80.
Before the issue of a Proclamation by the President, on 4 August 1970, assuming to himself all
functions of the Government of Kerala, the Governor of the State had issued on 26 June 1970,
under article 174(2) (b), a notification dissolving the Legislative Assembly.
On 13 June 1971, the Governor of Punjab issued an Order dissolving the Legislative Assembly.
Later, on 15 June the President issued a Proclamation assuming to himself all functions of the
Government of that State.
In the case of West Bengal, the Proclamation was issued by the President on 29 June 1971,
after the Assembly was dissolved by the Governor by an Order under article 174(2) (b), on 25 June
1971.
In the case of Kerala also, the Proclamation was issued by the President on 5 December 1979,
though the Assembly was dissolved by the Governor earlier on 30 November 1979.
81.
Art. 356(3).
82.
Ibid.
83.
L.S. Deb., 3-8-1959, cc. 122-131; 7-8-1959, cc. 1196-1227; 17-8-1959, c. 2820. As soon as the
President issues a proclamation under article 356(1), the Lok Sabha Secretariat asks in writing for
a copy of it and ascertains from the Ministry of Home Affairs the date on which the proclamation
is to be laid on the Table of the House. On receipt of the copy, necessary action is taken for laying
it on the Table by the Secretariat. After the proclamation has been laid on the Table, it is ascertained
from the Ministry of Parliamentary Affairs the date on which a resolution for approval of the
proclamation is to be brought before the House—for detailed procedure see Instructional Order
No. 1282, 18-8-2008, L.B, L.S.S.
84.
Ibid., 17-8-1959, cc. 2849-51; 31-8-1956, cc. 5050-52.
85.
Ibid., 20-8-1959, c. 3327; 19-11-1954, cc. 409-514.
86.
L.S. Deb., 12-3-1953, c. 1910; 29-3-1956, c. 3782; 6-5-1965, cc. 13524-26.
Ordinances and Proclamations by the President
699
or is beyond the scope of the resolution87, or is contradictory to the text of the
resolution88. An amendment seeking to give conditional approval to the Proclamation
is also inadmissible89.
The House may either adopt or not adopt a resolution which seeks to approve
the Proclamation. The resolution before the House cannot take any other form. As
such, no amendments/substitute motions can be moved to such a resolution90. A
resolution seeking disapproval of the Proclamation is inadmissible as there is no
provision under article 356 for such a resolution.
A Proclamation approved by both Houses of Parliament, unless revoked, ceases
to operate on the expiration of a period of six months from the date of issue of the
Proclamation. However, if and so often as a resolution approving the Proclamation is
passed by both Houses of Parliament, the Proclamation unless revoked, continues in
force for a further period of six months from the date on which it would otherwise
normally have ceased to operate but no such Proclamation can in any case remain in
force for more than three years. However, in the case of the States of Punjab and
Jammu and Kashmir, it was extended beyond three years91. If the dissolution of the
Lok Sabha takes place during any such period of six months and a resolution approving
the continuance in force of such Proclamation is passed by the Rajya Sabha during
the said period, the Proclamation ceases to operate at the expiration of thirty days
from the date on which the Lok Sabha first sits after its reconstitution unless before
the expiration of the said period of thirty days a resolution approving the continuance
in force of the Proclamation has also been passed by the Lok Sabha92.
A resolution, of which a notice is given by a member, seeking disapproval of
the continuance in force of a Proclamation for a further period of six months is
inadmissible.
Where the Proclamation declares that the powers of the Legislature of the State
shall be exercisable by or under the authority of Parliament, it is competent–
87.
P. Deb., (II), 9-8-1951, c. 197; L.S. Deb., 17-8-1956, cc. 2849-51.
88.
L.S. Deb., 31-8-1956, cc. 5050-52; 6-5-1965, cc. 13524-26.
89.
Ibid., 31-8-1956, cc. 5050-52.
90.
L.S. Deb., 6-5-1965. cc. 13522-26.
91.
In the case of the Proclamation issued by the President on 11 May 1987 in respect of the State
of Punjab, the period of three years was construed as four years and five years, respectively, by
making two successive amendments to the Constitution through the Constitution (Sixty-seventh
Amendment) Act, 1990 and the Constitution (Sixty-eighth Amendment) Act, 1991. The Proclamation
remained in force till 25 February 1992 when it was revoked as a popular Government came into
being after the Assembly elections.
In the case of the Proclamation issued by the President on 18 July 1990 in respect of the State
of Jammu and Kashmir, the period of three years was construed as four years, five years, six years
and seven years, respectively, by making four successive amendments to the Constitution
(Application to Jammu and Kashmir) Order, 1954 through Presidential notifications. The
Proclamation remained in force till 9 August 1996 when it was revoked as a popular Government
came into being after the Assembly elections.
92.
Art. 356(4); L.S. Deb., 31-8-1956, c. 5046; 1-9-1956, c. 5211.
Practice and Procedure of Parliament
700
for Parliament to confer on the President the powers of the Legislature
of the State to make laws, and to authorise the President to delegate, subject
to such conditions as he may think fit to impose, the power so conferred to
any other authority to be specified by him in that behalf;
for Parliament, or for the President or other authority in whom such
power to make laws is so vested, to make laws conferring powers and imposing
duties, or authorising the conferring of powers and the imposition of duties,
upon the Union or officers and authorities thereof;
for the President to authorise, when the Lok Sabha is not in Session,
expenditure from the Consolidated Fund of the State pending the sanction of
such expenditure by Parliament93.
Approval of a Proclamation by both the Houses of Parliament is followed by
an Act delegating certain powers to the President, including the power to make laws
for the State concerned. The Act delegating powers to the President also provides that
before making any law for the State, the President should, whenever he considers it
practicable to do so, consult a parliamentary committee constituted for the purpose.
Such a committee may include members of the Lok Sabha and the Rajya Sabha who
at the time fill the seats allotted to the State concerned in the two Houses. Such laws,
called the President’s Acts, are required to be laid before both Houses of Parliament
and Parliament has the power to amend these Acts within a period of thirty days after
they are so laid94.
There may be a combined discussion on the resolution approving the
Proclamation issued by the President in respect of a State and on the motion for
consideration of the Bill for delegation of powers of the Legislature of that State95,
or there may be combined discussion on such a resolution and on the Budget of the
State in question96. In the latter case, after the combined discussion, the resolution is
93.
Art. 357(1).
94.
A President’s Act has to be laid on the Table even though the Proclamation has been revoked in
the meantime.
95.
96.
In respect of one of the President’s Acts, viz. The Punjab Security of the State Act, 1951, a
resolution for amending the Act was adopted by the Provisional Parliament—see P. Deb., (II),
28-9-1951, c. 3748. These amendments were later incorporated in the Act.
In another instance, viz. The Kerala University (Amendment) Act 1966, a resolution for amending
the Act was adopted by the Lok Sabha on 12 April 1966; the Rajya Sabha concurred with the
Resolution on 12 May 1966. On receipt of a message from the Rajya Sabha, in this regard a copy
of the resolution was forwarded to the Ministry concerned for necessary action—L.S. Deb.,
12-4-1966, cc. 10626-655; R.S. Deb., 12-5-1966 cc. 1261-73.
See, for instance, in respect of the State of Kerala, L.S. Deb., 6-5-1965, cc. 13514-15; 7-5-1965,
cc. 13841-43; in respect of the State of West Bengal, L.S. Deb., 21-3-1968, cc, 2208-2303;
22-3-1968, cc. 2611-34; in respect of the State of Uttar Pradesh, L.S. Deb., 25-3-1968, cc. 30403138; in respect of the State of Punjab, L.S. Deb., 29-8-1968, cc. 2989-3076; in respect of the
State of Bihar, L.S. Deb., 20-8-1969, cc. 127-73.
The Jammu and Kashmir Budget 1992-93 was discussed together with resolution seeking approval
of continuance in force of the proclamation issued by the President on 18 July 1990 for a further
period of six months with effect from 3 September 1992. L.S. Deb., 11-8-1992, cc. 496-522;
523-50.
Ordinances and Proclamations by the President
701
put to vote and after it is adopted, the Demands for Grants are disposed of97. A
combined discussion has also been held on the resolution approving the Proclamation
and on the motion admitted under Rule 189.
On 21 November 1967, a combined discussion was held on a motion
moved by a member regarding non-rejection of the report of the Governor
of Haryana recommending the issue of Proclamation and a statutory resolution
approving the Proclamation issued by the President in relation to that State.
First the motion was moved by the member, and then the resolution by
the Minister of Home Affairs. After the combined discussion, the motion and
the resolution were put to the vote of the House in the same order98.
The Proclamations so far issued have declared that the powers of the Legislature
of the State would be exercisable by or under the authority of Parliament. On account
of this declaration:
Parliament has voted grants99 and passed Appropriation Bills for the
withdrawal of moneys from the Consolidated Fund of the States concerned;
and the papers which by statutory obligation are required to be laid
before the State Legislature have instead been laid before Parliament100.
The Budget of a State presented to the House in pursuance of a Proclamation
issued by the President in respect of that State does not lapse and further discussion
thereon can be resumed if, soon after revocation of that Proclamation a fresh
Proclamation is issued in respect of that State101.
Any law made in exercise of the power of the Legislature of the State by
Parliament or the President or other authority which Parliament or the President or
such other authority would not, but for the issue of a Proclamation under article 356,
have been competent to make shall, after the Proclamation has ceased to operate,
continue in force until altered or repealed or amended by a competent Legislature
or other authority102.
The Jammu and Kashmir Budget 1994-95 was discussed together with resolution seeking
approval of continuance in force of the proclamation issued by the President on 18 July 1990 for
a further period of six months with effect from 3 September 1994, L.S. Deb., 9-8-1994,
cc. 511-78.
97.
L.S. Deb., 30-3-1970, cc. 253-54; 20-8-1970, cc. 247-344; 21-8-1970, cc. 244-59; 25-8-1970,
cc. 234-363; 25-3-1985, cc, 351-72; 26-3-1985, cc. 221-303.
98.
Ibid., 21-11-1967, cc. 1727, 1738; 18-4-1968, cc. 1433-48, 1568.
99.
When the discussion on the Pondicherry Budget was taken up, a member raised a point of order
that it would be financially improper and also irregular to meet the deficit by grants-in-aid and
loans from the Government of India before the Union Budget was presented and the Consolidated
Fund of India operated. The Speaker observed that there was nothing illegal or improper in it and
there was no infringement of any rule.—L.S. Deb., 11-3-1976. c. 170.
100.
L.S. Deb., 5-4-1961, c. 9344; 18-4-1961, c. 11248; 26-4-1961, cc. 13917-18; 2-5-1961, c. 14911;
5-5-1961, c. 15970.
101.
Ibid., 26-3-1965, cc. 6122-33.
102.
Art. 357(2).
Practice and Procedure of Parliament
702
Proclamation of Financial Emergency
If the President is satisfied that a situation has arisen whereby the financial
stability or credit of India or of any part thereof is threatened, he may, by Proclamation,
make a declaration of financial emergency103. A Proclamation so issued shall be laid
before each House of Parliament and may be revoked or varied by a subsequent
Proclamation.
It shall cease to operate at the expiration of two months, unless before the
expiration of that period it has been approved by resolutions of both Houses of
Parliament. The Proclamation approved by Parliament shall be in operation until it is
revoked by the President104. A Proclamation issued subsequently by the President
revoking or varying the Proclamation of financial emergency in operation is not,
however, required under the Constitution to be laid before each House of Parliament.
When a Proclamation of financial emergency is in operation, the executive
authority of the Union shall extend to the giving of directions to any State to observe
such canons of financial propriety as may be specified in the directions, and to the
giving of such other directions as the President may deem necessary and adequate for
the purpose.
103.
Art. 360(1).
Giving the reasons for the incorporation of the provisions relating to financial emergency in
the Constitution, Dr. B.R. Ambedkar observed: “having regard to the present economic and
financial situation in this country there can hardly be any Member of this Assembly who would
dispute the necessity of some such provision as is embodied in this new article 280A and I,
therefore, do not propose to spend any time on giving any justification for the inclusion of this
article in our Draft Constitution. All that I propose to say is this, that this article more or less
follows the pattern of what is called the National Recovery Act of the United States passed in 1930
or thereabout, which gave the power to the President to make similar provisions in order to remove
the difficulties, both economic and financial, that had overtaken the American people as a result
of the great depression from which they were suffering. The reason why, for instance, we have
thought it necessary to include such a provision in the Constitution is because we know that under
the American Constitution within a very short time the legislation passed by the President was
challenged in the Supreme Court and the Supreme Court declared the whole of that legislation to
be unconstitutional, with the result that after that declaration of the Supreme Court, the President
can hardly do anything which he wanted to do under the provisions of the National Recovery Act.
A similar fate perhaps might overwhelm our President if he were to grapple with a similar
financial and economic emergency. In order to prevent any such difficulty we thought it was much
better to make an express provision in the Constitution itself and that is the reason why this article
has been brought forth.”—C.A. Deb., Vol. X, p. 361.
The provisions in article 360 shall not apply to the State of Jammu and Kashmir in view of subclause (13) of clause 2 of the Constitution (Application to Jammu and Kashmir Order) 1954.
There has, however, been no occasion so far to make use of the emergency provisions under
this article.
Before enactment of the Constitution (Forty-fourth Amendment) Act, 1978, the provisions
regarding revocation, duration, etc. applicable to a Proclamation of emergency applied to a
Proclamation of financial emergency [art. 360(2) before substitution]. Further, the satisfaction of
the President as to the declaration of a financial emergency was final and conclusive. Courts had
no jurisdiction to entertain any question on any ground regarding the validity of the issue of or
continuance in operation of a Proclamation of financial emergency [art. 360(5)] before omission.
(S. 42 of the said Act substituted clause 2 of art 360 by a new clause and omitted clause 5 thereof).
104.
Art. 360(2).
Ordinances and Proclamations by the President
703
Under any such direction, a State may be required to reduce salaries and
allowances of all or any class of persons serving in connection with the affairs of that
State.
All money or financial Bills passed by the State Legislature may be required to
be reserved for the consideration of the President.
It shall also be competent for the President during such financial emergency to
issue directions for the reduction of salaries and allowances of all or any class of
persons serving in connection with the affairs of the Union, including the Judges of
the Supreme Court and the High Courts105.
105.
Art. 360(4).