Ordinance And Pardoning Power Of The President

During the recess of Parliament, the President has the authority to issue ordinances under Article 123 of the Constitution. These ordinances have the same force and effect as a law passed by Parliament, but they are only in effect for a limited time.

 

The President's most important legislative power is the ability to enact ordinances. He has been entrusted with dealing with unforeseen or urgent situations. However, the following four limitations apply to the exercise of this power:

 

1. He can only promulgate an ordinance when both Houses of Parliament are not in session, or when one of the two Houses is not in session. As a result, the President's power to legislate by ordinance is not a legislative power.

 

2. He can only make an ordinance if he is convinced that the circumstances necessitate immediate action. The Supreme Court held in the Cooper case (1970) that the President's satisfaction can be challenged in court on the basis of malafide.

 

3. His ordinance-making power is coextensive with the Parliament's law-making powers in all matters except duration. This has two consequences:

 

• An ordinance can only be issued on topics that the Parliament can legislate on.

 

• An ordinance is subject to the same constitutional restrictions as a piece of legislation passed by Parliament. As a result, anordinance cannot limit or eliminate any of the fundamental rights.

 

4. When Parliament reconvenes, every ordinance issued by the President during the recess must be laid before both Houses of Parliament. The ordinance becomes an act if it is approved by both Houses. If Parliament does not take any action, the ordinance will expire six weeks after the re-assembly of Parliament. If both Houses of Parliament pass resolutions disapproving the ordinance, it may be repealed even before the six-week deadline. If the Houses of Parliament are summoned on different dates, the six-week period is calculated using the later of the two dates. This means that an ordinance's maximum lifespan is six months and six weeks if it is not approved by Parliament (six months being the maximum gap between the two sessions of Parliament). If an ordinance expires without being presented to Parliament, the acts carried out and completed under it before it expires remain fully valid and effective.

 

An ordinance can also be revoked by the President at any time. His power to make ordinances, however, is not discretionary, and he can only promulgate or withdraw an ordinance with the advice of the prime minister's council of ministers. An ordinance, like any other piece of legislation, can be retroactive, meaning it can take effect from a previous date. It has the power to amend or repeal any act of Parliament or ordinance. It can also change or amend a tax law. It cannot, however, be used to amend the Constitution.

 

Article 72 of the Constitution gives the President the authority to grant pardons to people who have been tried and convicted of any crime in all cases where: 

1. the punishment or sentence is for an offence against a Union Law; 

 

2. the punishment or sentence is by a court martial (military court);

 

3. Sentence is a sentence of death.

 

The President's pardoning power is separate from the judiciary; it is an executive power. However, the President does not act as a court of appeals while exercising this power. The purpose of giving the President this power is twofold:

 

• To keep the door open for any judicial errors in the operation of the law to be corrected; and

 

• To provide relief from a sentence that the President considers to be excessively harsh.

 

1. Pardon- It absolves the convict of all sentences, punishments, and disqualifications by removing both the sentence and the conviction.

 

2. Commutation- It refers to the exchange of one form of punishment for a less severe one. A death sentence, for example, could be commuted to rigorous imprisonment, which could then be commuted to simple imprisonment.

 

3. Remission- This refers to a reduction in the length of a sentence without changing its nature. For example, a sentence of two years in solitary confinement could be reduced to one year in solitary confinement.

 

4. Respite- It refers to the imposition of a lighter sentence in place of one that was originally imposed due to a unique circumstance, such as a convict's physical disability or a woman offender's pregnancy.

 

5. Reprieve- This refers to a temporary stay of execution of a sentence (especially a death sentence).

 

Its goal is to give the convict enough time to petition the President for a pardon or commutation of his or her sentence.

 

The governor of a state also has pardoning power under Article 161 of the Constitution. As a result, the governor has the authority to grant pardons, reprieves, respites, and remissions of punishment, as well as to suspend, remit, and commute the sentence of anyone convicted of breaking a state law. However, the governor's pardoning power differs from that of the President in two ways:

 

1. The President has the power to commute court martial (military court) sentences, whereas the governor does not.

 

2. The President has the power to commute a death sentence, whereas the governor does not. Even if a state law mandates death, the President, not the governor, has the authority to grant a pardon. The governor, on the other hand, has the power to suspend, remit, or commute a death sentence. In other words, when it comes to the suspension, remission, and commutation of death sentences, both the governor and the President have concurrent authority.

 

The Supreme Court examined the President's pardoning power in various cases and established the following principles:

• The mercy petitioner is not entitled to an oral hearing before the President.

 

• The President can re-examine the evidence and reach a different conclusion than the court.

 

• The President, on the advice of the union cabinet, will exercise the power.

 

• The President is not required to provide justifications for his actions.

 

• The President is entitled to relief not only from an overly harsh sentence, but also from an obvious blunder.

 

• The Supreme Court does not need to establish specific guidelines for the President's exercise of power.

 

• The President's exercise of power is not subject to judicial review unless the decision is arbitrary, irrational, malafide, or discriminatory.

 

• If the President has previously rejected a petition for mercy, a stay cannot be obtained by filing a new petition.

 

Despite the fact that the President lacks constitutional discretion, he does have some situational discretion. In other words, in the following circumstances, the President can act at his discretion (i.e., without the advice of the ministers):

 

(I) Appointment of Prime Minister when no party has a clear majority in the Lok Sabha or when the current Prime Minister dies unexpectedly with no obvious successor.

 

(ii) The dismissal of the council of ministers if it is unable to demonstrate the LokSabha's confidence.

 

(iii) If the council of ministers loses its majority, the Lok Sabha is dissolved.