"Unveiling Constitutional Bounds: Exploring the

Basic Structure Doctrine in Constraining

Promulgating Ordinances within India"

Abstract

This paper aims to establish a suitable limitation on the power of

Promulgating Ordinances under Article 123 of the Indian
Constitution. Through an examination of the unique historical and
practical aspects of this executive-legislative prerogative in
India's constitutional parliamentary democracy, we explore the
constitutional basis of the flexible Basic Structure Doctrine
(BSD), independent of its original connection to Article 368.
Analyzing the judicial responses to invalidated Ordinances, we
highlight the delicate interplay between executive discretion and
judicial review. To provide a practical solution, we propose an
Indianized version of the Strict Scrutiny Test. This adapted
framework incorporates three key elements: the situational
context, intent evaluation (including potential malafide motives),
and a focus on the central rationale behind Ordinance issuance.
By presenting this tailored evaluative paradigm, we offer a
pragmatic approach to assess Ordinances, striking a balance
between swift executive action and constitutional adherence. This
study contributes to the discourse on Ordinance power, enriching
the understanding of its complexities within the Indian
constitutional context.
 I. INTRODUCTION

The power to promulgate ordinances in the Indian constitutional

jurisprudence represents a distinctive amalgamation of executive
and legislative authority. This prerogative has, however, been
susceptible to repeated instances of executive misuse, whereby it
has been employed to override judicial precedents and circumvent
the established legislative process. A recent illustration of such
misuse can be discerned in the GGovernment of NCT of Delhi vs.s
UOI 1
case where a week after the Apex Court unanimously recognized
the executive and legislative powers of the Delhi government, the Central
government promulgated the Government of NCT of Delhi (Amendment)
Ordinance and nullified the constitutional bench’s judgement. 2
These
ordinances are characterized by a dearth of legislative
deliberation, as they can be promulgated by the President "except
when both the Houses of the Parliament are in session." 3
This
deviates from the customary practices observed in parliamentary
democracies and assumes the nature of a constitutional fiat. 4
In
thise paperresent study, an exhaustive exploration of the historical
evolution of the ordinance power is undertaken, encompassing its
manifestations prior to India's independence and the
deliberations within the Constituent Assembly.

1
State (NCT of Delhi) vs. Union of India, (2023) 9 SCC 1.
2
Apurva Vishwanath, SC v Centre in Delhi: Unanimous verdict overturned
within days, what can happen now?, THE INDIAN EXPRESS (May 21, 2023),
https://indianexpress.com/article/explained/explained-law/services-delhi-can-
centre-undo-supreme-courts-decision-8619096/.
3
INDIA CONST. art. 123.
4
Shubhankar Dam, Constitutional Fiats: Presidential Legislation in India's
Parliamentary Democracy, 24(1) Columbia Journal of Asian Law 1,1-61 (2010).
Prof. Dam in this paper refers to ordinances as ‘Constitutional Fiats’ or
‘legislation without legislature’. The general understanding of any
parliamentary democracy is that the elected members will form the legislature
and will act as the law-making body for the democracy. However, ordinances
are a deviation from the customary understanding of a parliamentary
democracy because in this case the ordinance assumes the nature of a
legislation because of it being a legally binding or authoritative order passed by
the President and thereby assumed the nature of a constitutional fiat.
The principal objective of this paper revolves around the
imposition of more stringent constraints on the authority to
promulgate ordinances, achieved through a meticulous
assessment of the applicability of subjecting such ordinances to
scrutiny under the aegis of the Basic Structure Doctrine (hereafter
referred to as the “BSD”). The argumentcontention posited here
maintains that it is reasonable to examine or reviewthe evaluation of
ordinances usingon the touchstone of the BSDasic Structure
Doctrine. This arguments rests on the is a plausible avenue, contingent
upon the recognition of the BSD asic Structure Doctrine as an
autonomous and self-sufficient test of modality of constitutional
judicial review. Notwithstanding this proposition, an efficacious
implementation of such a mechanism is impeded by certain
pragmatic considerations. These encompass the transitory nature
of ordinances, marked by their abbreviated duration of efficacy, as
well as the intricate and multifaceted character of the Basic
Structure dDoctrine itself.

In light of these challenges, a proactive solution is proposed in this

paperadvocated, involving the substitution of the BSD-based
assessment with an alternative evaluative framework – one that is
both sustainable and pragmatic, and has achieved a degree of
judicious acceptance within the Indian legal landscape. To this
end, an adaptation of the Strict Scrutiny doctrine is
recommended, tailored to the Indian context. This modified
paradigm for scrutinizing ordinances integrates three key facets
namely,: (i) the contextual circumstances underpinning the
promulgation; (ii), the discernment of intent, encompassing the
presence of any malafide motives, and; (iii) a focus on the central
rationale rather than ancillary justifications. Through the
discerning application of this recalibrated methodology, it is
suggested that the Jjudiciary can effectively oversee the
constitutional conformity of ordinances, striking an equilibrium
between exigent executive action and the preservation of
constitutional integrity.

Part II of this paper starts with forming an argument for a free-

flowing BSD which is not textually tied to Article 368. We look at
the evolution of Basic Structure, while also briefly noting its
shortcomings. Part III introduces and elaborately places
Ordinances as a defiance in a Parliamentary Democracy such as
India, by going through the history of the ordinance making power
and Constituent Assembly Debates. Part IV looks at how the
Supreme Court has dealt with Ordinances so far to see the extent
that the court was willing to go so far to review Ordinances. Part V
proposes the tailored Strict Scrutiny Test. Part VI pulls all the
arguments together and provides a meaningful conclusion.

II. BASIC STRUCTURE DOCTRINE

The Basic Structure Doctrine (“BSD”) is a unique Indian

Constitutional Doctrine, developed in the context of land reform
policies which lead to a political tussle between the Jjudiciary and
the Eexecutive in the early stage postof our independence. The
political tussle famously culminated when the Judiciary declared
the existence of a Basic Structure in our Constitution which
cannot be amended in the celebrated judgement of Kesavananda
Bharati vs. State of Kerala.5 However, the BSD evolved further in
the following years. It has been since used to invalidate executive
action and legislative actionsions.6 The textual connection that BSD
has with Article 3687 has been withering away in the second half

5
Kesavananda Bharati v, State of Kerala, 1973 4 SCC 245. (‘Kesavananda
Bharati’).
6
See, S.R. Bommai vs . Union of India, (1994) 3 SCC 1; DR M Ismail Farooqui vs
Union of India, AIR 1995 SC 605; GC Kanungo vs State of Orissa, (1995) SCC 5
96.
7
INDIA CONST. art. 368.The Constitution of India, 1950, Art.368.
of our independence, and the BSD gradually got reinvented as a
free-flowing doctrine which is part of Constitutional common law.

This part of the paper summarizes the Basic Structure Doctrine

and its evolution from the early 1950s to the present day by
developing on the case law that applied the doctrine to invalidate
various forms of state action. While initially it was restricted only
to Constitutional amendments, it was soon expanded and used to
invalidate other forms of state action. We see how Basic Structure
Doctrine was developed as an implied limitation on the power of
the parliament to the amend the Constitution. Later, the Basic
Structure itself got entrenched such that no other form of state
action can invalidate it.

A. Initial Development and Textual Ties to Article 368 of the

Constitution

In 1951, the Shankari Prasad8 case began the power tussle

between the Parliament and the Judiciary. In the backdrop of land
reform legislation, the erstwhile Zamindari Abolition Acts,9, the
Parliament, believing that the land distribution in India was
favoring the Zamindars, decided to pass the Zamindari Abolition
10

Acts to redistribute land among the people. However, at the time

the Right to Property was a fundamental right in the Constitution,

8
Shankari Prasad Singh Deo vs Union of India, 1951 SCC 966. (‘Shankari
Prasad’).
9
Id., ¶4. (The agrarian reforms introduced by States of Bihar, Uttar Pradesh
and Madhya Pradesh have been compendiously referred to as ‘Zamindari
Abolition Acts’ by the Supreme Court).
10
Zamindars in India were the landowners or landlords during the Mughal and
British colonial periods. The term "zamindar" is derived from the Persian word
"zamin," meaning land, and "dar," meaning holder. These individuals were
essentially intermediaries between the government and the peasants or farmers
who cultivated the land. Post-independence the Zamindari system was abolished in
1951 through the 1st Constitutional Amendment Act of 1951. To get a comprehensive
understanding of the historical land system in India see Rekha Bandyopadhyay,
‘Land System in India: A Historical Review’ 28(52) Economic and Political
Weekly A149, A149-A155 (1993).
under Article 31.11 The bills were subject to massive number of
judicial challenges, and with a view ofto ending the litigation the
Government decided to amend the Constitution and passed the
Constitution (First Amendment) Act, 1951. 12 The aggrieved
Zamindars approached the court seeking to enforce their
fundamental right under Article 31, 13
and after the amendment,
brought petitions under Article 3214 challenging the First
Amendment itself as unconstitutional and void. The above-
mentioned facts might be specific to Shankari Prasad, but they
similarly manifest in most of the cases that are going to be
mentioned. Most of the cases were filed by aggrieved landowners
who kept challenging Constitutional amendments as they could
not challenge the law itself, since the law could not be challenged
owing to the saving clauses i.e., Article 31A and , 31B and 31C of
the Constitution. 15
The Supreme Court in one of its first landmark
judgments noted that:
“We find it, however, difficult, in the absence of a clear
indication to the contrary, to suppose that they also intended to
make those rights immune from Constitutional amendment. We
are inclined to think that they must have had in mind
what is of more frequent occurrence, that is, invasion of
the rights of the subjects by the legislative and the
executive organs of the State by means of laws and rules
made in exercise of their legislative power ……and not the
abridgement or nullification of such rights by alterations of the
11
INDIA CONST. art. 31.The Constitution of India, 1950, Art.31.
12
The Constitution (First Amendment) Act, 1951.
13
Supra note 11.
14
INDIA CONST. art. 32.The Constitution of India, 1950, Art.31.
15
Article 31A and Article 31B were inserted by the Constitution (First
Amendment), 1951. Article 31C was inserted by the Constitution (Twenty-fifth
Amendment) Act, 1971. Article 31A was inserted to provide protection to laws
that were enacted to give effect to certain Directive Principles of State Policy,
particularly those related to agrarian reforms. Article 31B validates certain acts
and regulations listed in the Ninth Schedule of the Constitution. Article 31C
provides protection to laws made by the state for implementing the principles specified
in Article 39(b) and (c) of the Directive Principles of State Policy. These provisions
were aimed at supporting land reforms. and implementing socio-economic
directives.
 Constitution itself in exercise of sovereign constituent power.
That power, though it has been entrusted to Parliament,
has been so hedged about with restrictions that its
exercise must be difficult and rare. On the other hand, the
terms of Article 368a are perfectly general and empower
Parliament to amend the Constitution, without any
exception whatever.” 16

The above paragraph shows that the Supreme Court’s initial

conception does not have any form of limitations on the power of
the Parliament to amend the Constitution as it did not consider a
Constitutional Amendment a “law” under Article 13. 17 The
Constitution places express limitations on the power of the
Parliament to make laws which infringe upon fundamental rights.
Shankari Prasad resonated that express limitations were not
applicable on the power to amend the Constitution, as
Constitutional amendments strictly were not law under Article 13.
18

The next relevant case in the build-up to the BSD is Sajjan Singh
vs Union of India,19 which essentially reaffirmed the stance of the
Court in Shankari Prasad. Gajendragadkar CJ’s opinion stated
that:
“…..When the Constitution-makers did not include Part III
under the proviso, it would be reasonable to assume that
they took the view that the amendment of the provisions
contained in Part III was a matter which should be dealt
with by Parliament under the substantive provisions
of Art. 368 and not under the proviso. It has no doubt been
suggested that the Constitution-makers perhaps did not

16
Shankari Prasad, supra note 84, ¶15.
17
INDIA CONST. art. 13.The Constitution of India, 1950, Art.13.
18
Shankari Prasad, supra note 8, ¶14, 15.
19
Sajjan Singh vs Union of India, 1965 AIR 845. (‘Sajjan Singh’).
 anticipate that there would be many occasions to amend the
fundamental rights guaranteed by Part III. However that may
be..., as a matter of construction, there is no escape from
the conclusion that Art. 368 provides for the amendment
of the provisions contained in Part III without imposing
on Parliament an obligation to adopt the procedure
prescribed by the proviso.”20

We can explicitly see here, that Gajendragadkar CJ he read

understands the power of the Parliament to amend even Part III of
the Constitution as an unlimited power. However, the important
takeaway from the judgement lies within the minority opinion
given by Hidayatullah J, where he provided that he required
separate reasoning apart from Shankari Prasad and that the
reasoning given by the bench in Shankari Prasad was not substantial
enough. Relying on a textual reading, he states that “Article 368
does not give power to amend ‘any provision’ of the
Constitution.”21 He further lays down that Article 368 contains
merely the procedure to amend the Constitution and does not
confer the power to amend the Constitution.22

Mudholkar J’s minority opinion comes the closest to a Basic

Structure reading of the Constitution. He does not conclude on
the existence of the Basic Structure but does mention basic
features and casts doubt upon the free power to amend. This can
be noted in his judgement
“…The Constitution indicates three modes of amendments and
assuming that the provisions of Article 368 confer power on Parliament
to amend the Constitution, it will still have to be considered whether
as long as the preamble stands unamended, that power can be
20
Id., ¶7 (per Gajendragadkar CJ) . (per Gajendragadkar J.).
21
Id., ¶38-45 (per Hidayatullah J.).
22
Id., ¶54 (per Hidayatullah J.).
exercised with respect to any of the basic features of the
Constitution...… To illustrate my point, as long as the words “sovereign
democratic republic” are there, could the Constitution be amended so as
to depart from the democratic form of Government or its republic
character? If that cannot be done, then, as long as the words “Justice,
social, economic and political etc.”, are there could any of the rights
enumerated in Articles 14 to 19, 21, 25, 31 and 32 be taken away? If they
cannot, it will be for consideration whether they can be modified.” 23
He
was of the opinion that the Constituent Assembly(hereafter referred to as
“CA”) had formulated a preamble which “appears to be an epitome of the
basic features of the Constitution”24 and raised the question as to
whether it could be the CA’s intention to give permanency to these basic
features.

IC Golaknath vs State of Punjab 25 and Kesavananda Bharati vs

State of Kerala26 are the last two pieces of the puzzle which
culminated in the coming together of the Basic Structure Doctrine.
Chief Justice K. Subba Rao (CJ) wrote an article after the judgments
came out to clear the Supreme Court’s position and laid down the
that amendments under Article 368 are law and are subject to the
provisions of Article 13. This allowed express limitations on the
power to amend, however this did not mean that fundamental
rights under Part III cannot be taken away, they can only be taken
away to extent that Article 13 allows and anything beyond that is
void. In essence, it conveyed that through amendments, Parliament is
barred from eroding the foundational essence or core of fundamental
rights Basically, this meant that the core could not be taken away..27
What can be understood from his essay is that the rudimentary core of
these rights embodies the philosophical underpinning of the Constitution

23
Id., ¶58-59 (per Mudholkar J.).
24
Id., ¶55 (per Mudholkar J.).
25
I. C. Golaknath vs State of Punjab, 1967 AIR 1643.
26
Kesavananda Bharati, supra note 51.
27
K Subba Rao, The Two Judgments: Golaknath and Kesavananda Bharati,
(1973) 2 SCC (Jour-1(‘K Subba Rao’) 1.
which permeates the entire the constitutional structure and thus
constitutes a cardinal or inherent part of the constitutional framework.

The Golaknath judgment primarily held that Article 368 only

prescribed the procedure to amend the Constitution, while the
power to amend was conferred on the Parliament by virtue of under
Articles 245,28, and 24829 of the Constitution. The court had
trouble defining whether amending power was found within the
Constitution or whether the Parliament had the amending power
as a part of their constituent power. However, K Subba Rao CJ in
his article clears out this criticism against Golaknath by saying
that it is immaterial whether the power to amend is found in one
provision or as a constituent the power. For him , as long as the
exercise of this power qualifies as law, it falls within the purview of
Article 13 exercise of the said power was law, attracting Article 13. He
responds to the mixing up of constituent power and amending
power by noting that that amending power may be carved out of
the constituent power, or amending power itself can be loosely
defined as constituent power.30 Here the court places limitations
on the power to amend. However, we need to note that the
limitations placed here are the express limitations that the
Constitution provides under Article 13.

In Kesavananda Bharati, the court finally acknowledges the

existence of the unamendable Basic Structure within our
Constitution. The important point that we need to note is that the
court finally considered whether the Constitutional amendments
under Article 368 were subject to implied limitations. This would
create an interpretive leeway, as the petitioners would not have to
again prove whether Constitutional amendments were law. Here
the court used various rules of construction to aid their interpretation. It
28
INDIA CONST. art. 245.The Constitution of India, 1950, Art.245.
29
INDIA CONST. art. 248.The Constitution of India, 1950, Art.248.
30
K Subba Rao, supra note 217, 3--64.
was argued that the source of limits can be found in the word
amend, itself, in Article 368, as the parliament can only amend the
Constitution and not radically alter it. Finally, all the opinions
concluded that implied limits on amending power emerge when
one reads Article 368 together with the other provisions of the
Constitution. Khanna J found support for these arguments and
noted that:
“…We may now deal with the question as to what is the scope of
the power of amendment under Article 368. This would depend
upon the connotation of the word “amendment”.…. Question has
been posed during arguments as to whether the power to amend
under the above article includes the power to completely abrogate
the Constitution and replace it by an entirely new Constitution.
The answer to the above question, in my opinion, should be in the
negative.….. I am further of the opinion, that amendment of the
Constitution necessarily contemplates that the Constitution has
not to be abrogated but only changes have to be made in it. The
word “amendment” postulates that the old Constitution survives
without loss of its identity despite the change and continues even
though it has been subjected to alterations.…. As a result of the
amendment, the old Constitution cannot be destroyed and done
away with; it is regained though in the amended form. What then
is meant by the retention of the old Constitution? It means the
retention of the basic structure or framework of the old
Constitution. A mere retention of some provisions of the old
Constitution even though the basic structure or framework of the
Constitution has been destroyed would not amount to the
retention of the old Constitution. Although it is permissible under
the power of amendment to effect changes, howsoever important,
and to adapt the system to the requirements of changing
conditions, it is not permissible to touch the foundation or to alter
the basic institutional pattern.”31

31
Kesavanada Bharati, supra note 51, ¶1426 (per Khanna J.).
There were arguments using the structural interpretation of the
Constitution and there were original arguments. The court expressly
acknowledged that implied limitations exist in the form of the
Basic Structure of the Constitution. These implied limitations
could be found in various places like the Preamble, Natural Law
and Part III. According to Sikri CJ:
“In a written Constitution it is rarely that everything is
said expressly. Powers and limitations are implied from
necessity or the scheme of the Constitution. I will mention
a few instances approved by the Judicial Committee and this
Court and other courts. I may first consider the doctrine that
enables Parliament to have power to deal with ancillary and
subsidiary matters, which strictly do not fall within the
legislative entry with respect to which legislation is being
undertaken).32

Thus, it can be seen how for the first time the Supreme Court firmly
asserted the stance that there exists something sacrosanct in our
Constitution which while not explicitly outlined but goes to the very core
of the Constitution and is so basic or fundamental that it must remain
unaltered.

Krishnaswamy in his book argues that a structural reading of the

Constitution offers good reasons to interpret amendment under Article
368 to be subject to implied limitations.33 We can therefore see This
section underlines the development of the BSD to showcase the textual
ties that the BSD and its development it had to Article 368. While
initially the Supreme Court agreed that the power to amend the
Constitution was unlimited without any express limitation, Sajjan
Singh’s minority casted a doubt which later became a limitation in

Kesavanada Bharati, supra note 51, ¶210 (per Sikri J.).

32

33
KRISHNASWAMY, DEMOCRACYAND CONSTITUTIONALISM IN INDIA, (1st
edn., 2011).
Golaknath. While Golaknath incorrectly held that amendments
were law and subject to express limitations, ultimately
Kesavananda changed that and correctly placed implied
limitations on this power while, sourcing them from an
unamendable Basic Structure Doctrine. Krishnaswamy in his book
argues that a structural reading of the Constitution offers good reasons
to interpret amendment under Article 368 to be subject to implied
limitations.34

B. Basic Structure Doctrine as a Free-Flowing Constitutional

Method of Judicial Review

While the Basic Structure Doctrine was initially developed as a

response to the parliament using their amending power under
Article 368 to amend the Part III of the Constitution, its later
application has been much broader than the limited purpose it
initially intended to serve. It has been used to test various forms
of state action, which, in one form or another, changed the basic
features of the Constitution or attacked upon them. We have also
seen the Indian Basic Structure Doctrine being exported into
other major democratic Constitutional jurisprudences, who have
used the doctrine rather freely to expand on the concept of basic
structure. 35

It is generally accepted that the Basic Structure has been broadly used to
invalidate all forms of state action as it is a form of implied limitation on
the power of the State, owing its origin in two essential political values
which are of major importance to India: Democracy and
Constitutionalism. However, the law on this point is unsettled, owing to
34
KRISHNASWAMY, DEMOCRACYAND CONSTITUTIONALISM IN INDIA, (1st
edn., 2011).
35
See, Ridwanul Hoque, The Evolution of the Basic Structure Doctrine in
Bangladesh: Reflections on Dr. Kamal Hossain's Unique Contribution,
10 INDIAN J. CONST. L. 44 (2023).
the turbulations caused by cases such as Indira Gandhi vs. Raj
Narain36and Kuldip Nayar vs. Union of India.37
While the law on this point is unsettled, owing to the turbulations caused
by cases such as Indira Gandhi vs Raj Narain38 and Kuldip Nayar vs
Association of Democratic Reforms,39 it is generally accepted that the
Basic Structure has been broadly used to invalidate all forms of state
action, as it is a form of implied limitation on the power of the State,
owing its origin in two essential political values which are of major
importance to India: Democracy and Constitutionalism. Sudhir
Krishnaswamy argues that the BSD has strong Constitutional
basis, even when used to invalidate ordinary legislation. He also
argues and concludes that BSD should be used to challenge all
forms of state action. 40
The SR Bommai vs Union of India 41 case
changed the generally accepted position that Presidential Powers
under Article 356 were judicially reviewable.42. The key issue before
the bench was whether secularism is an essential feature of the
Constitution, which all the judges unanimously answered in the
affirmative andThey used a vague general Constitutional value,
secularism, and used the doctrine toit to invalidate the state
emergency established.43. This has opened up pathways to

36
Indira Gandhi vs Raj Narain, (1975) 2 SCC 159. This was the first instance
where the ruling of Kesavananda Bharti as being implemented. The Supreme
Court with a majority of 4:1 struck down the 39 th Amendment which essentially
restricted the power of judicial review in matters related to conduct of
elections. It was held that the amendment went against the basic structure of
the Constitution as it was detrimental to free and fair elections.
37
Kuldip Nayar vs Union of India, (2006) 7 SCC 1. The bench dismissed the BSD’s
application to regular legislation. The petitioner had challenged two amendments to the
Representation of People Act 1951: one eliminating the state residency requirement for
Rajya Sabha members and another enforcing an open ballot for the President's election
in that chamber to curb "cross voting." The petitioner argued that these changes
undermined federalism and intimidated legislators. However, the majority upheld the
amendments, stating the basic structure doctrine doesn't extend to ordinary legislation.
38
Indira Gandhi vs Raj Narain, (1975) 2 SCC 159.
39
Kuldip Nayar vs Union of India, (2006) 7 SCC 1.
40
Krishnaswamy, supra note 33.
41
SR Bommai vs Union of India, (1994) 3 SCC 1 at ¶153.
42
See, Christopher J. Beshara, Basic Structure Doctrines and the Problem of Democratic
Subversion: Notes from India, 48(2) Verfassung Und Recht in Übersee / Law and
Politics in Africa, Asia and Latin America 99, 109-123 (2015).
43
Decision of the Supreme Court in SR Bommai vs Union of India : A Critique,
(1994) 3 SCC (Jour) 1.
challenge state action which is either infringesing upon, or
generally unsettlesing the basic structure of the Constitution.
Further in cases

We can also rely onrefer to other cases, such as Ismail Faruqui vs

Union of IndiaIndia44 and GC Kanungoo vs Union of IndiaUnion of
India,45, where the court used BSD to invalidate legislations which
infringed upon the essential feature of rule of law.. 46

We can, therefore in light of the above cases, conclude that the BSD it
has been, and can be, used to invalidate state action other than
Constitutional amendments.

C. Foreign Export and Usage of Basic Structure Doctrine

The Basic Structure Doctrine which originated within the
Constitutional framework of India, has evolved into a comprehensive
doctrine of judicial review with global recognition. This essay
section explores the remarkable expansion of the BSD beyond its
initial confinement to Article 368 of the Indian Constitution,
tracing its influence across diverse jurisdictions including
Bangladesh, Pakistan, Nepal, and the context of European
integration.

India's Supreme CourtThe Supreme Court of India has played a pivotal

role in shaping the BSD, which was initially conceived as a
44
DR M Ismail Farooqui vs Union of India, AIR 1995 SC 605 A. The bench invoked
the BSD to invalidate a provision of the Ayodhya (Acquisition of Certain Areas) Act 1993
by finding that the provision negated the rule of law by denying judicial remedy to
litigants. Rule of law is a basic feature of the Constitution and the bench found the
provision to be unlawful.
45
GC Kanungo vs State of Orissa, 1995 SCC 5 96. In this case the BSD was used to
invalidated the Arbitration (Orissa Second Amendment) Act, 1991, which rendered
awards from special arbitral tribunals void, stating that the law infringed upon the rule
of law.
46
See, Beshara, Christopher J. Beshara, “Basic Structure Doctrines and the
Problem of Democratic Subversion: Notes from India, 48(2) .” Verfassung Und
Recht in Übersee / Law and Politics in Africa, Asia and Latin America 99, 109-
12348, no. 2 (2015).): 99–123. http://www.jstor.org/stable/26160109.
safeguard against unfettered Constitutional amendments. Rooted
in principles such as Public Interest Litigation (“PIL”) and the
Basic Structure doctrine itself, the doctrine's impact surged
beyond the confines of Article 368.

In Bangladesh, a history marked by martial law and Constitutional

upheavals laid the groundwork for the BSD's application. The 8th
amendment47 case exemplifies this, where the judiciary upheld the
BSD to nullify the amendment and establish the finite amending
power. This case marked the introduction of the Basic Structure doctrine
in Bangladesh’s legal jurisdiction. The bench The was significantly
influenced by Kesavananda Bharati and the basic structure jurisprudence
established by the Supreme Court of India. As a result, Bangladesh has
consistently applied the doctrine of basic structure in almost all
constitutional cases to assess the constitutionality of Constitutional
Amendments. 48
In 2011, through the 15th amendment the Parliament of
Bangladesh introduced Article 7B into the Constitution. Article 7B
stipulates that the Preamble, Parts I, II, and III, Article 150, and all other
provisions related to the basic structures of the Constitution are not
subject to amendment through insertion, modification, substitution,

47
Anwar Hossain Chowdhary vs Government of People’s Republic of Bangladesh & Ors.
41 DLR 1989 AD. In this landmark case. The Constitution (Eighth Amendment) Act,
1988 established six permanent benches of the High Court Division in different divisions
of Bangladesh. This raised questions regarding whether such decentralization of the
Apex Court was permissible within the constitutional framework. Ultimately, the
Supreme Court of Bangladesh ruled that the Eighth Amendment Act violated the
doctrine of Basic Structure of the Constitution. Specifically, it was established that the
unitary character of the higher judiciary is a fundamental aspect of the Constitution.
The supremacy of the Constitution and the unitary nature of the Supreme Court were
declared as integral components of the Basic Structure. Additionally, the Supreme
Court distinguished between the amending power and constituent power of the
legislature, concluding that the Basic Structure of the Constitution cannot be altered
through the amending power alone.
48
The doctrine has been invoked by Bangladesh’s judiciary in cases such as
Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 1, Bangladesh v
Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1 & Khondker Delwar Hossain v
Bangladesh Italian Marble Works Ltd. (2010) 62 DLR (AD) 298. For a much
detailed evolution of the BSD in Bangaldesh see, Ridwanul Hoque, The
Evolution of the Basic Structure Doctrine in Bangladesh: Reflections on Dr.
Kamal Hossain’s Unique Contribution, 10 Indian Journal of Constitutional Law
44, 44-72 (2021).
repeal, or any other method.49 While it is debated if or if not the
amendment is in line with how the court in Anwar Hossain Chowdhary
understood the BSD,50 it is worth noting that Bangladesh has solidified
the BSD by giving it formal recognition in its constitutional
framework.This precedent echoed in similar cases across South Asia,
underlining the indispensable nature of certain Constitutional tenets for
preserving the essence of the Constitutional order.

Pakistan's journey with the BSD Basic Structure Doctrine mirrors its
gradual acceptance and evolution. Despite initial hesitance,
Pakistani courts have progressively embraced the BSD's
underlying principles. Key cases like Darwesh Arbey vs.
Federation of Pakistan51 and Al Jehad Trust (Judge’s case)t52
demonstrated a shifting judicial stance, as they invoked BSD-like
concepts 53
to impose constraints on governmental actions. This
transition illuminates the growing acknowledgment of the
doctrine's significance in maintaining Constitutional integrity.

Nepal's experience illustrates the global resonance of BSD. As the

concept gained prominence worldwide, Nepal assimilated

49
BANGLADESH CONST. art. 7B.
50
For a critique of the amendment see, Kawser Ahmed, Revisiting Judicial
Review of Constitutional Amendments in Bangladesh: Article 7B, the
Asaduzzaman Case, and the Fall of the Basic Structure Doctrine, 56(2) Israel
Law Review 263, 263-287 (2023). Kawser argues that the amendment has
departed from the intial understanding of the BSD in the 8 th amendment case.
The majority in the 8th amendment case didn't outright prohibit amendments to
constitutional provisions. Instead, they upheld that amendments are acceptable
as long as they don't violate the basic features of the Constitution. However, in
contrast to the ruling Article 7B unequivocally bars any form of amendment to
constitutional provisions identified as basic features.
51
Darwesh Arbey vs. Federation of Pakistan, PLD 1980 Lahore 206.
52
Al Jehad Trust vs Federation of Pakistan, PLD 1996 SC 367.
53
The Supreme Court of Pakistan while observing the thin majority in
Kesavanada Bharati and the differences in the politico-judicial histories of the
two countries decided to not directly and identically apply BSD from India but
developed a similar doctrine called ‘Salient Features Doctrine (SFD)’. To get an
understanding of the SFD see, Aratrika Choudhari, The Curious Case of the
Salient Features: Exploring the Current Relevance of the Basic Structure
Doctrine in Pakistan, Indian Constitutional Law and Philosophy, (Oct. 7, 2023,
5:07 PM), https://indconlawphil.wordpress.com/category/basic-structure/basic-
structure-in-pakistan/.
comparable principles while adapting them to its distinct
Constitutional context. The inclusion of a "spirit of the preamble"
clause in Article 116(1)54 exemplifies the nation's inventive
approach, showcasing that while the BSD may have textual
origins, there remains room for interpretative flexibility to
preserve the Constitution's spirit.55

The reach of the BSD extends beyond South Asia, as demonstrated

in the European context. The German Constitution's compatibility
with European integration allowed for the establishment of a
supreme jurisdiction within the European framework. This
development raised pertinent questions about the primacy of
national Constitutional principles versus European law. The
German courts' assertion that altering the basic structure
necessitates a Constitutional amendment, and the Italian courts'
emphasis on fundamental principles, underscore the doctrine's
relevance even in the context of European integration.56

It is also worth noting that very recently the Supreme Court of Israel also
known as the High Court of Justice(HCJ) in Movement of Quality
Government in Israel vs Speaker of the Knesset came up with an
57

approach similar to BSD to strike down amendments to its Basic Law. 58

54
NEPAL CONST. art. 116(1).The Constitution of the Kingdom of Nepal, 1990,
Art.116(1).
55
For a detailed analysis of BSD in Nepal see, Shyam Kumar Bhattarai, Judicial
Review of Constitutional Amendments in Nepal Vis-a-Vis Basic Structure
Doctrine, 16 NJA L.J. 59 (2022).
56
Dieter Conrad, 'Basic Structure of the Constitution and Constitutional Principles',
Lecture Delivered at the Indian Law Institute, New Delhi on April 2, 1996.Dietrich
Conrad, Pg 106-107
57
Movement of Quality Government in Israel vs Speaker of the Knesset, 61(1)
PD 619 (2006).
58
Israel unlike India does not have a written or complete Constitution but
instead relies on a series of 13 basic laws enacted by its legislative body, the
Knesset, using procedures akin to ordinary legislation. In the landmark 1995
case (United Mizrahi Bank vs Midgal Cooperative Village, CA 49(4) P.D. 221 (1995),
the HCJ established that when the Knesset passes basic laws, it functions as a
constitutional assembly. The Knesset then is exercising authority delegated
from the post-independence constitutional assembly to subsequent Knessets. In
Israel the basic laws hold a superior hierarchical status compared to regular
legislation. Additionally it has been by the HCJ that it has the power to
On July 24, 2023, the Knesset59 approved an amendment to the Basic
Law: Adjudication. This amendment effectively removed the authority of
the court to scrutinize the reasonableness of decisions made by the
government or government ministers. The reasonableness doctrine, also
known as the "patent unreasonableness" test, holds significant
importance in Israeli administrative law. This doctrine enables courts to
examine the process by which executive decisions are made, the
considerations taken into account during the decision-making process,
and the appropriateness of the final decision. At each stage of the review,
the court assesses whether the government's actions align with what a
reasonable government would do, ensuring accountability and fairness in
administrative decision-making. The amendment was in effect
invalidating the reasonableness enquiry of the HCJ. The HCJ took up the
matter and decisively affirmed its authority to invalidate basic laws under
specific conditions. With an overarching majority of 12:3 it was held that
if a provision in a basic law clashes with fundamental aspects of Israel's
identity as a Jewish and democratic state, the HCJ can strike it down.
HCJ clarified that even when the Knesset acts as a constitutional
assembly, its power isn't absolute. The amendment was struck down as
the bench found it to be an “unprecedented damage to the basic
characteristics of the State of Israel as a democratic state”. It was
asserted that the Israeli people, as the true sovereign, haven't granted
the Knesset the legal authority to alter Israel's core identity as a Jewish
and democratic state. This framework used by the bench is very similar
to India's Basic Structure Doctrine.

invalidate regular laws conflicting with provisions within basic laws. This is very
similar to the Indian case where the Indian Supreme Court has time and again
maintained the position that the Constitution is Supreme and any legislation,
amendment or state-action can be struck down if it is found to be
unconstitutional by the court.
59
The Legislative body in Israel is referred to as the ‘Knesset’. The word in
Hebrew means ‘Assembly’ and is often used to address the unicameral parliament of
Israel in Jerusalem.
The BSD, birthed within India's Constitutional discourse, has
transcended its initial confines under Article 368, evolving into a
dynamic and globally acknowledged doctrine of judicial review. Its
adoption and adaptation in countries like Bangladesh, Pakistan,
Nepal, and its echoes within the European context, affirm the
enduring importance of safeguarding a Constitution'sconstitution’s
core features to preserve its sanctity and ensure stable democratic
governance.

D. Defects of BSD

While the BSD has been successfully used to invalidate

Constitutional amendments and other forms of state action, it is
still popularly criticised by various lawyers and academics. Raju
Ramachandran in his review of Krishnaswamy’s book60 attacks the
BSD on the grounds that it is anti-democratic and counter-
majoritarian. He says that the selected appointed judges assumed
vast power to decide what the basic structure of the Constitution
was and this was a form of judicial overreach. Ramachandran
perceives BSD as an intricate and refined legal principle primarily and
exclusively tailored for legal practitioners and adjudicators. He suggests
and that the only check on this judicial doctrine would be the
effectiveness of judicial exercise of this power. 61

In all the above cited cases, we canhave seen that there have been
few instances of the usage of this doctrine for invalidation of anti-
democratic and, unconstitutional acts. However, in most of the
other cases, the BSD was used to invalidate social-economic
reforms proposed by the government. What might have been born as a
doctrine to protect the core of Constitution against amendments has now

Krishnaswamy, supra note 33.

60

61
RAJU RAMACHANDRANaju Ramachandran, ‘The Supreme Court and the Basic
Structure Doctrine, ’ in B.N. Kirpal et al.(eds) SUPREME BUT NOT
INFALLIABLEupreme But Not Infallible, 213 (New Delhi: Oxford University Press,
2000).
been expanded to protect the Constitution against any action that has the
potential of shaking the essential features of the Indian Constitution.
which favour the masses i.e. Golak Nath and Kesavananda.

III. Power to Promulgate Ordinance

It is imperative to understand the historical roots of the power to

promulgate ordinances before making any arguments on the
reviewability of this extraordinary power. Power to promulgate
ordinance is neither a new concept, nor is only limited to India. It
can be best described as a product of the colonial times that our
Constituent Assembly consciously chose to consciously keep despite
the apprehension of the possibility of the executive usurping the
legislative powers to itself. , however with a lack of due diligence which
we shall discuss later in this paper.

A. The Historical Context of Ordinances in India

The genesis of ordinances can be found in the Indian Councils Act

of 1861.62 Under Section 23 of the Act, the Governor-General was
granted the authority to issue directives that carried the weight of
law. 63
This conferred power allowed for the issuance of Ordinances,
subject to two essential conditions: firstly, there needed to be an
emergency situation, and secondly, the Ordinance could remain
effective for a maximum period of six months. This power was
preserved in subsequent legislations, such as the Government of
India Act, 19109,64 and further extended in the Government of
India Act, 1935(hereafter referred to as “GOI Act 1935”).65

62
Indian Councils Act, 1861.
63
Indian Councils Act, 1861 §23.
64
Government of India Act, 19109 §72.
65
Government of India Act, 1935 §42.
The power more or less remained the same during the British era
with unchecked authority granted to the Governor General. The
GOI Government of India Act, 1935 is the predecessor to the
contemporary ordinance making power which we know today in
the language of Article 12366 and Article 21367 of the Indian
Constitution. The Governor General could promulgate two types of
ordinances under the GOI Act 1935 which were respectively found
under Section 42 and 43.

Section 42 of the Act reads: “If at any time when the Federal
Legislature is not in session the Governor-General 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..”68 In other words there
are two key elements of Section 42. First For for Section 42, tilted
“Power of Governor-General to promulgate ordinances during
recess of Legislature”, to operate, firstly, the Federal Legislature
must not be in session, and secondly, there should beis the
satisfaction of the Governor General about the existence of
circumstances which demand immediate action on his part. Then
further Section 42 makes it mandatory to lay down such an
ordinance before the Federal Legislature, and comes with a sunset
clause of six weeks within which such ordinance would cease to
exist. The Section also reads : “An ordinance promulgated under
this section shall have the same force and effect as an Act of the
Federal Legislature assented to by the Governor-General.”
Another important point is that : “If and so far as an ordinance
under this section makes any provision which the Federal
Legislature would not under this Act be competent to enact, it
shall be void.” We can locate six key elements in Section 42, which
include:
66
INDIA CONST. art. 123.The Constitution of India, 1950, Art.123.
67
INDIA CONST. art. 213.The Constitution of India, 1950, Art.213.
68
Supra note, 65.Government of India Act, 1935 §42.
 1. Inoperative Legislative House
2. Satisfaction of the Governor General
3. Mandatory introduction to the House
4. Sunset clause
5. Same force and effect as an Act
6. Legislative Competence

Section 43 is titled as “Power of Governor-General to promulgate

ordinances at any time with respect to certain subjects”. On the
very onset it can be observed that this power, unlike Section 42,
can be operated at any time irrespective of the sitting of the
House. The Section reads as followsreadsstates : “If at any time the
Governor-General is satisfied that circumstances exist which
render it necessary for him to take immediate action for the
purpose of enabling him satisfactorily to discharge his functions
in so far as he is by or under this Act required in the exercise
thereof to act in his discretion or to exercise his individual
judgment, he may promulgate such ordinances as in his opinion
the circumstances of the case require.”69 It can be noticed how the
language of the provision provides the Governor General with
wider discretionary powers and authorises him to issue ordinances
in order to fulfil his functions as and when he is satisfied in his
judgement that the circumstances require him to do as he deems
fit. Further sub-section 5 very clearly states that “The functions of
the Governor-General under this section shall be exercised by him
in his discretion.” The clause also comes with a limitation that
such an ordinance can only operate a maximum period of six
months and can be extended for a further period of maximum six
months. Thus, an ordinance under Section 42 can be operative for
one year. One important common point between Section 42 and 43
is that the ordinance must be promulgated as an “immediate
action”.

69
Government of India Act, 1935 §43.
We can locate in Section 43 :
1. Satisfaction of the Governor General
2. Mandatory introduction to both Houses in case it is an
extension to a previous ordinance
3. Sunset clause
4. Same force and effect as an Act
5. Legislative Competence
Prima facie it appears as if the Ordinance making power is a
power which is subject to legislative checks and limitations as to
the permanency of their validity. However, it is argued that despite
what appears to be a power with requisite checks and balance
wasis indeed a dictatorial power granted to an unelected
individual of the British Raj so that the colony can be run as per their
convenience.70 .

B. The Constituent Assembly on Ordinances

If we look at the Constituent Assembly (hereafter referred to as

“CA”) debates, it can be easily noticed that the assembly did not
ponder over the contingencies associated with the extraordinary
power. The few and barely any questions asked by a few conscious
members were barely properly addressed properly, let alone
discussed and answered. The CA was under the large impression and
credence that the high office of the President would never abuse
ordinance making power.

Some members of the CA raised their concerns regarding the

tenure of ordinances as they believed the given time period was
erroneously long.71 It was even proposed for every ordinance to be
laid before both Houses of the Parliament after their reassembly

70
A. P. Pandey, Hundred Years of Ordinances in India: 1861-1961, 10(2) Journal
of the Indian Law Institute 259, 259-260 (1968).
71
CONSTITUENT ASSEMBLY DEBATES, Vol 8, 204-207 (1949).
and if the both Houses do not provide approval then the ordinance
should stand inoperative.72

Dr. Ambedkar was of the view that there is no fear of giving the
Executive parallel legislative powers that can be misused because
ordinances can only be promulgated when the Parliament is not in
session. He justified the power based on the idea that in case a
Llegislative emergency arises then the Executive can temporarily
use ordinances to “deal with a situation which may suddenly and
immediately arise.” 73

During the deliberation of the draft Constitution, concerns were

raised about the potential consequences of granting extensive
powers to the President and Governors. Many criticized the
wisdom behind bestowing such authority upon them.
Nevertheless, in defence of the power to issue ordinances, Dr. B.R.
Ambedkar, the Chairman of the Drafting Committee, provided the
following justification: “…My submission to the House is that it is
difficult to imagine cases where the powers conferred by the
ordinary law existing at any particular moment may be deficient to
deal with a situation which may suddenly and immediately arise.
….What is the executive to do? The executive has got a new situation
which it must deal with exhypothesi. It has not got the power to deal with
that in the existing code of law. The emergency must be dealt with, and
it seems to me that the only solution is to confer upon the
president the power to promulgate the law which will enable the
executive to deal with that particular situation because it cannot
resort to the ordinary process of law because, again ex hypothesi, the
legislature is not in session. therefore…., it seems to me that
fundamentally there is no objection to the provisions contained in
Article 123."74
72
CONSTITUENT ASSEMBLY DEBATES, Vol 8, 208 (1949).
73
Id.
74
CONSTITUENT ASSEMBLY DEBATES, Vol 8, 214 (1949).
Basically Dr. Ambedkar was of the opinion that the power can only be
used in case of emergency and that too only when the house is not in
session, which for him was sufficient safeguard and as Shubhankar Dam
writes Ambedkar “saw no cause for alarm”. 75

However, from a bare reading of the debates it can be observed how Dr.
Ambedkar while resisting these genuine concerns76 raised by
members did not evernever answered the crux of the concerns. The
primary fiberfibre or key point of the concerns raised by CA members
H.V., Kamath, H.N. Kunzru and Prof. K.T. Shahwhich was that these
powers can be abused and can lead to a dictatorial governance.
Nowhere in the Constitution is the word Legislative Assembly defined.
We do not even have a definition for what really is an Emergency. So in
that case even though the CA was sure that a Legislative Emergency will
act as a safety valve to ensure no abuse of ordinances, but they missed
on what really is the safety valve and when will it really be acceptable to
call a situation a Legislative Emergency. Nowhere within the
constitutional framework is the term "Legislative Assembly" explicitly
delineated. Additionally, a precise definition of "Emergency" remains
absent from constitutional provisions. Consequently, despite the
Constitutional Assembly's confidence in the efficacy of a Legislative
Emergency as a safeguard against potential misuse of ordinances, a
critical oversight emerges regarding the identification of the genuine
safety valve mechanism and the delineation of criteria for discerning a
situation as warranting a Legislative Emergency designation.

Let us also not forgetFurthermore, it is important to note that the

British enacted the provisions to make sure that their colonies
continued to function under the direct wishes of the executive, there is
no democracy in their colony and an unelected British executive can
may make laws as and when he is satisfied. It is hard to not ask the

75
Shubhankar Dam, Constitutional Fiat: Presidential Legislation in India’s Parliamentary
Democracy, 24 COLUM. J. Asian L. 1, 21 (2010).
76
Id. at 13-21.
question as to what could conceivably underpin the reasoning or
validation for endowing the same authority without requisite scrutiny or
sufficient deliberation within a nation that deliberately opted for a
Parliamentary Democracy? Moreover, even if one were to concur with
Dr. Ambedkar’s perspective that such authority was deemed necessary to
address potential future emergencies of an unspecified nature, there
remained ample opportunity to institute additional checks on the
authority of the legislative body, as evidently implemented in other
jurisdictions.
What could possibly be the rationale or justification for plonking the
same power without any due diligence or adequate discussion in a
country which consciously chose to be a Parliamentary Democracy? And
even if we agree with Dr. Ambedkar’s view that such a power was
required to deal with some sort of undefined future emergency, then
there was still scope for putting more checks on the power or drawing
the contours of an assembly better as other jurisdictions have evidently
done.
Thus, it is evidentobservable is argued that the power to promulgate
ordinances is a living remanent of an undemocratic colonial power
which still exists and is vastly used in a post- independent
democratic India.

C. Ordinance Power to promulgate Ordinances s: A look at

other in other jJurisdictions

AnThe immediate comparison lies with neighbouring jurisdictions of

Pakistan and Bangladesh who have similar ordinance making
powers like India in Article 128 77 and Article 9378of their
respective Constitutions. Both countries have experienced comparable
77
The Constitution of the Islamic Republic of Pakistan, 1973, Art.128.
78
The Constitution of Bangladesh, 1972, Art.47.
judicial evolution concerning presidential legislation, akin to India's
experience. It is imperative to provide a concise overview of the
ordinance powers in these nations, as India can glean insights from their
mechanisms of checks and balances.More or less Bboth the countries
have had similar judicial development like India when it comes to
presidential legislation. The comparative Constitutional angle with these
two jurisdictions has been well discussed by Prof. Shubhankar Dam in his
work and this paper will not be going into the comparative angle in depth
as there is ample literature already available. However it is important
79

to mention, in brief, the following countries and their ordinance powers

as India can take notes from their system of checks and balances .

Peru for instance have limited the ordinance power by giving the
President power only over certain matters. The Constitution of
Peru reads : “It is the duty of the President . . . to promulgate
special measures in economic and financial subject, through
emergency decree with force of law, as required by national
interest and reporting to Congress. Such emergency decrees may
be modified or repealed by Congress.”80
Argentina’s Constitution says that “Only when due to exceptional
circumstances the ordinary procedures foreseen by this
Constitution for the enactment of laws are impossible to be
followed, and when rules are not referred to criminal issues,
taxation, electoral matters, or the system of political parties, he
shall issue decrees on grounds of necessity and urgency, which
shall be decided by a general agreement of ministers who shall
countersign them together with the Chief of the Ministerial
Cabinet.”81

79
Shubhankar Dam, Constitutional Fiat: Presidential Legislation in India’s
Parliamentary Democracy, 24 COLUM. J. Asian L. 1 (2010).
80
The Constitution of Peru 1993, Article 118(9)
81
The Constitution of the Argentine Nation, Article 99(3).
Even if it is difficult to come up with an answer for what will be an
emergency it still is possible like the aforementioned two
countries to put a check on the power by narrowing the scope and
specifying what can constitute an emergency. The CA
unfortunately did not choose to do so and simply transplanted the
provisions of the GOI Act 1935 into the Constitution.

D. Power to Promulgate Ordinance under the Indian

Constitution

If we look at Article 123 and Article 213213, we can easily notice

the little to no change in the power to promulgate ordinances as
juxtaposed to the parent provisions. The contemporary provision
has been explained in the following four points.

(1) The authority to issue ordinances must be exercised with the

assistance and advice of the Council of Ministers. In essence, this
power is vested in the government itself. The President's power is
not an executive one; rather, it is legislative power entrusted to
the Executive branch.
(2) An ordinance can be issued when both Houses of Parliament
are not in session, meaning it can be done when none or only one
of the two Houses is in session. A House is considered not in
session when it is dissolved or prorogued. The President's
authority to issue ordinances arises as soon as either House of
Parliament is prorogued. If an ordinance is promulgated before
the prorogation order is made and notified, the ordinance is
invalid. Although successive Speakers of Lok Sabha have objected
to the frequent use of ordinance-making powers, especially for
"fiscal ordinances" issued shortly before or after a parliamentary
session, the President's decision to prorogue Parliament for the
purpose of issuing an ordinance cannot be legally challenged.
(3) Before deciding to promulgate an ordinance, the President (or
Governor) must be "satisfied" that circumstances warrant
immediate action. The President's satisfaction regarding the
existence of such circumstances is mainly a subjective matter
within the government's discretion and cannot be questioned in a
court of law. Clause (2) stipulates that (a) an ordinance carries
the same force and effect as an Act of Parliament; (b) every
ordinance must be presented before both Houses of Parliament as
soon as they reassemble; (c) it becomes inoperative at the expiry
of six weeks from the reassembly of the Houses; (d) the President
may withdraw the ordinance at any time, i.e., before the expiry of
six weeks; (e) it can cease to operate earlier if resolutions of
disapproval are passed in both Houses; (f) even after the
ordinance lapses or becomes inoperative, the actions taken during
its validity remain fully valid and legal; and (g) resolutions of
disapproval may be rejected, and a Bill to replace the ordinance
may be passed.
(4) The President can do through an ordinance what Parliament
can do through legislation. However, Clause (3) clarifies that the
President cannot use an ordinance to do something that
Parliament is not empowered to do through legislation. In other
words, the President's authority to promulgate ordinances is
subject to the same limitations as Parliament's power to make
laws. Legislative power is granted to the President only to address
emergency situations for a short interim period and should not be
used as a parallel legislative authority. It would be
unconstitutional if the Executive attempts to usurp the
Legislature's powers by repeatedly ruling through ordinances
without presenting them before Parliament.
More of less a similar position is maintained at a State Level for
the State Assembly and the Governor.
Now that we have established what kind of power we are dealing
with for this paper we shall in the following sections understand
how such power needs to be put on a higher pedestal than
ordinary legislation and any judicial review of ordinances should
and must be a test with a high bar of scrutiny.

E. Courts Attitude So farThe Attitude of the Courts

The Indian Courts have, so far, had a very hands-off approach with
ordinances, and have mostly chosen to not to interfere with the
decisions of the Executive to regarding the promulgation ofe
ordinances. The entire reason why ordinances are promulgated is
because the Executive considers certain circumstances to be of
such nature that they must to deal with the circumstances take
the ordinance route. The major two pre-conditions are that
circumstances exist and house is not in session. It is argued that
so far the Judiciary has been more executive minded than the
executive itself when it comes to ordinances. This paper relies on
three landmark cases to support this argument regarding the
court’s outlook towards ordinances.

A. The More known Court opinions

InFirst is the case of A.K. Roy v UOI82, where the question of

existence of pre-condition arose, it was conveniently labelled as a
political question and out of the scope of judicial review. Existence
of circumstances is a very important facet of the ordinance power.
The entire reason the Constituent Assembly chose to keep this
power was because of the apprehension that, in the future, there
might arise situations which are unforeseeable to ordinance

82
(1982) 1 SCC 271.
power can act as a safety valvefailsafe. We know that there must be
existence of those circumstances for a justified exercise of the
power. However, there is nothing in the provision which provides
for proving that the circumstances indeed to exist or existed.
There is no burden on the Executive to prove that there actually
were certain circumstances which they felt were grave enough to
take the ordinance route. Basically, the constituent assembly did
think of how the power will be a safety valve during legislative
emergencies but did not take into account securing the safety
valve itself from the Executive. The question mark regarding the
existence of circumstances and proving the circumstances was
answered by the Supreme court in A.K. Roy where the Court held
that it would be the petitioner who will have to make a prima facie
case to show that necessary circumstances did not exist for
promulgating an ordinance. So the burden is not to prove
existence of circumstances but to prove non-existence of
circumstances. If anything it is assumed that if the Executive has
come up with an ordinance then circumstances must exist. Also
there is nothing in the provision or any law which asks the
Executive to intimate regarding what were the circumstances
under which they felt it necessary to make an ordinance. There is
no requirement of providing any reasons and often ordinances are
promulgated without any mention of what even is the emergency
that caused its promulgation necessary. In other wordswords,
there is no check to ensure that there indeed was a genuine
justified situation due to which the Executive acted the way it
acted. The decision of A.K Roy is not a good position and simply
shows howindicates that the Judiciary has chosen to keep imperative
questions outside of judicial review’s scope.

Further, The second case is ofin K. Nagaraja v State of AP where the

Supreme Court83 held that non-application of mind cannot be a

83
(1985) 1 SCC 198.
ground for declaring an ordinance invalid. It was observed as
followsThe Court noted: “This power is plenary within its field like
the power of the State Legislature to pass laws and there are no
limitations upon that power except those to which the legislative
power of the State Legislature is subject. Therefore, though an
ordinance can be invalidated for contravention of the
Constitutional limitations which exist upon the power of the State
Legislature to pass laws it cannot be declared invalid for the
reason of non- application of mind, any more than any other law
can be. An executive act is liable to be struck down on the ground
of non-application of mind.”84 It can be seen that the Court has
taken a position where it has assumed a default bona fide attached
to every ordinance passed and puts the Executive is a great high
position where the executive’s intentions cannot, and should not
be challenged in the court of law.
The third case is ofIn T. Venkata Reddy v State of Andhra Pradesh 85,
which was passed decided in the same year as K. Nagaraja, and also
maintains the position of not questioning malafideMalafide has been
maintained. Additionally, the court in T. Venkata Reddy went one
step ahead and places ordinance on the same footing as an Act of
Legislature. In other words all the attributes associated with an
Act will be associated with an ordinance. The problem here is the
wrong understanding of the words “same force and effect”. It is
one thing to say that an ordinance will have the same force and
effect as an Act, and it is a different game to put both in the same
footing because the idea behind an ordinance having the same
force and effect as an Act is to subject the ordinance once it is
promulgated to the same tests and limitations as an Act of the
Parliament will be subjected. The larger idea is that “the same
force and effect” will be an aftermath which will ensure that all
scrutinise an Act is subject to will be faced by the Ordinance too.

84
Id., ¶ 31.
85
1985 AIR 724.
But the court in T. Venkata Reddy has misunderstood the idea.
This can be observed when the court noted that : “motive of the
Legislature in passing a statute is beyond the scrutiny of courts.”
Then the court went on to reason that since we do not question
Parliament’s motive so we should not question the Executive’s
motive as well. This is a misunderstood inference as we cannot
equate a Parliament discussing and passing an Act to a Council
deciding to advice the President on an Ordinance. The motive of
the Legislature is not questioned because first of all the
Legislature is the intended place of making laws and second
because the Legislature has a very intricate process whereby bills
do not just get converted into Acts but have to follow a tedious
process of deliberation in the House which make their passing
more democratic and less questionable. In other words it is
understood that if an Act is passed it must have been discussed
and the House was prudent enough to take care of motives and
malafides. Basically there was an opportunity for Members to
question the need of the Act, ask what purpose does the Act serve
and Elected representatives have the power and opportunity to
suggest changes. The process in itself ensures that malafides are
looked after. This is not the same as an Ordinance where the
Council of Ministers one fine night decides that some
circumstances have arisen which need an immediate action in
form of an ordinance. The two situations are very different and
cannot be placed in the same footing as the Supreme Court thinks
can be put.

The view is supported by M.P. Jain in his commentary 86 where he

has written that the Court went too far in immunizing an
ordinance from Judicial Review. Further DD Basu in his
commentary too is of the view that the ground of mala fides is an
open ground for challenging an executive decision.87
86
M.P. Jain, Indian Constitutional Law, Vol 1, 6th edition, 245.
87
DD Basu, Commentary on the Constitution of India, Vol 8, 9th edn., 9098.
On the other hand in cases concerning State Emergencies it is
settled that the subjective satisfaction of the President/Governor
will be open to judicial review. The court has clarified that judicial
review can be exercised to ask questions of bona fide and the
material evidence can be examined based on which the emergency
was declared.

However, the same position has not been laid for Legislative
Emergencies under Article 123 or 213 by the Supreme Court so
far.

B. The lesser knownlesser-known court opinions

There has been one instance when the Supreme Court did take a
different approach and invalidated ordinances. Now Eveneven
though the judgement came from a smaller bench, and has not
been heavily relied upon, it is still imperative to talk about the
judgment that got it right. In 1998, the Supreme Court, in Krishna
Kumar Singh v State of Bihar88, invalidated a set of ordinances, as the
decision of the executive was found to be fraudulent. in the case of
Krishna Kumar Singh v State of Bihar.89 There are two major
takeaways from the judgment which include the difference
between ordinance and Act discussed by Justice Manohar and the
scrutiny of the Governor’s satisfaction which had not been done in
such manner before.
Justice Manohar stressed on the uniqueness of ordinances as
compared to Acts, and critically examined the State of Bihar’s
ordinance and subsequent repromulgation of ordinances. She

88
(1998) 5 SCC 643
89
(1998) 5 SCC 643
Stongly observed that : “The manner in which a series of
Ordinances have been promulgated in the present case by the
State of Bihar also clearly shows misuse by the Executive of
Article 213. It is a fraud on the Constitution. The State of Bihar
has not even averred that any immediate action was required
when the 1st ordinance was promulgated. It has not stated when
the Legislative Assembly was convened after the first Ordinance or
any of the subsequent Ordinances, how long it was in session,
whether the ordinance in force was placed before it or why for a
period of two years and four months proper legislation could not
be passed. The Constitutional scheme does not permit this kind of
Ordinance Raj. In my view all the ordinances form a part of a
chain of executive acts designed to nullify the scheme of Article
213. They take colour from one another and perpetuate one
another, some departures in the scheme of the 4th and
subsequent Ordinances notwithstanding. All are unconstitutional
and invalid particularly when there is no basis shown for the
exercise of power under Article 213. There is also no explanation
offered for promulgating one Ordinance after another. If the
entire exercise is a fraud on the power conferred by Article 213,
with no intention of placing any Ordinance before the legislature,
it is difficult to hold that first Ordinance is valid, even though all
others may be invalid. The same course of conduct has continued
from the first to the last Ordinance. I, therefore, do not agree with
brother Wadhwa, J's conclusion that the 1st Ordinance is valid but
the subsequent Ordinances are invalid. In my view all are invalid.”
90

It was her finding that the ordinances are in fact colourable

legislation and are unconstitutional. It can be observed that
Justice Manohar examined the Executive action by the placing the
Governor’s satisfaction at a higher pedestal as compared to the

90
Id., ¶ 25.
judgments before this case. She was willing to question and write
about the intent of the government and how the actions are
invalid based on wrongful intentions. However, since there was
disagreement in the bench so it was referred to a larger bench
which is yet to hear the case.
Another case where the court was willing to ask theopined on the
question of intention question comes from the High Court of Karnataka.
In the case ofis B.A. Hasanahba v State of Karnataka,91 (Karnataka
HC) Justice Saldanha invalidated ordinance on the ground of
motive. The ordinance was invalidated for its conspicuous timing
and purposes. The Constitution was not found to have been
violated by any provisions. Instead, it was highlighted that the
Government had sufficient chances to make changes and the
alteration had occurred at a different time, the ordinance might
have been considered valid. The single judge bench rightly pointed
outnoted that due to the absence of democratic debate and the
unrestrained authority to enact provisions that function as laws, it
became essential to subject ordinances to more rigorous
examination and caution. In such instances, the court must
scrutinize them with an elevated level of scrutiny.
It was observed that : “History has shown that there have been
scores of instances where Ordinances have contained hurriedly
drafted out provisions, several of them have turned out to be
draconian, which have been promulgated overnight and in this
background, the scrutiny of an Ordinance is something which a
Court must undertake with a higher degree of care and caution.”
92
Justice Saldanha was of the view that “an Ordinance is an
emergency or a stop-gap measure and the power is required to be
used for purposes of subserving, conserving and enhancing the
Constitutional process and should not be and cannot be used for
purposes of bypassing it.”93 The position laid down by Justice
91
AIR 1998 Kant. 91.
92
Id., ¶ 11.
93
Id., ¶ 12.
Saldanha is the first time when it was expressly observed by a
court that ordinances need to be subject to a stricter form of
review and have to be dealt with more carefully. It can may be
argued that Justice Saldanha’s judgement is the right position
which highlights the differences between an ordinance and an Act
and also appreciated the need for a stricter form of judicial
review. Whereas the position of T Venkata Reddy and cases before
it which puts ordinances and Acts in the same footing and
restricts judicial review of the executive decision is argued not be
the correct position.
Unfortunately the judgment of Justice Saldanha was overturned by
a larger bench of the High Court and is not the position adopted
by most courts in India.94 It was observed by the Division Bench
that: “ Regarding mala fides or ulterior motives attributed for the
issuance of the ordinance, it has to be held that the learned Single
Judge committed a mistake of law in quashing the ordinance on
that ground. It is well recognised principle of interpretation of the
Constitutional law that the legislature, as a body, cannot be
accused of passing the law on the ground of mala fides. The
Governor being the substitute of the legislature in case of the
ordinance, could not be attributed to the exercise of his
jurisdiction which could be termed to be colourable exercise of
power.” Thus ,the larger bench relied on the wrong position of K.
Nagaraj and upheld the judgment of Justice Saldanha by equating
ordinances with Act.

IV. Restraining the Power to Promulgate Ordinances

The primary aim of this paper is to find a suitable limitation on
the power of Promulgating Ordinances under Article 123 of the
Constitution. So far, we have seen the unique history and

94
AIR 1998 Kant. 210.
application of this power in a constitutional parliamentary
democracy such as India. We have also noted how the BSD is free
flowing constitutional doctrine of judicial review which has a
strong constitutional basis, independent of the textual ties it
initially had with Article 368.

This section makes a simple claim and argument: BSD can be

used to invalidate Ordinances, provided that Ordinances infringe
upon the Basic Structure. Since we have proven and discussed at
length how all forms of state action are subject to the BSD, we can
argue that the Ordinances, which are also law under Article 13,
are subject to implied limitations of the Constitution.

However, the BSD’s perils have been discussed earlier. It seems to

be an unfit test for restraining the abovementioned power, as
ordinances have short shelf life, a sunset clause. We suggest a
more sustainable and practical test to restrain this power. This
would be the Strict Scrutiny test, in a more differentiated modified
form to make it a more Indian test. While the Supreme Court, in
cases such as Anuj Garg, Naz Foundation and Navtej Johar tried to
use the test, there is still some apprehension about its usage in
Indian jurisprudence as it has not yet well developed in Indian
Context.

The proposed Strict Scrutiny test aims to establish a more robust

and contextually relevant framework for evaluating the
constitutionality of Promulgating Ordinances under Article 123 of
the Indian Constitution. This test seeks to address the
shortcomings of the Basic Structure Doctrine (BSD) in effectively
restraining the power of promulgating ordinances due to their
short shelf life and the dynamic nature of emergency legislative
action. The Strict Scrutiny test, as envisaged in this paper,
comprises three key elements: circumstances, intention, and
central rationale.
1. Circumstances: Under the Strict Scrutiny test, the
circumstances surrounding the promulgation of an
ordinance would be thoroughly examined. This involves a
careful evaluation of the exigencies that necessitate the
immediate legislative action. The government must
demonstrate a compelling and urgent need that justifies
bypassing the regular legislative process. The test would
require the government to provide a clear and well-
substantiated explanation for resorting to the ordinance
route rather than waiting for the parliamentary session. This
element ensures that the power of promulgating ordinances
is utilized only in exceptional situations where there is an
undeniable and immediate requirement for legislative
intervention.
2. Intention: The second facet of the Strict Scrutiny test
pertains to the intention behind the promulgation of the
ordinance. The test seeks to determine whether the motive
behind the ordinance is bona fide and in consonance with the
public interest, or if it is driven by ulterior motives such as
political expediency or partisan gain. The intention of the
executive in issuing the ordinance would be subjected to
close scrutiny by the judiciary. If an ordinance is found to be
driven by malafides or an intent contrary to the
constitutional values, it would be deemed unconstitutional
under this test. This element safeguards against the
potential abuse of the ordinance power for improper
purposes. The Supreme Court has already checked the
executive motives in the past and has the scope to judicially
 review them. Dam already proposed innovative methods for
the court to check the intentions. 95

3. Central Rationale, not Incidental Rationale: The third

element of the Strict Scrutiny test focuses on the core or
central rationale of the ordinance. This requires a rigorous
analysis of whether the ordinance addresses a pressing and
substantial issue that cannot wait for the regular legislative
process. The central purpose or objective of the ordinance
must be evaluated to determine whether it aligns with the
fundamental principles and values enshrined in the
Constitution. The test necessitates that the ordinance's
primary purpose is significant and directly related to the
urgent need that prompted its promulgation. It ensures that
ordinances are not used to enact unrelated or peripheral
provisions that do not warrant immediate attention. We have
the court already
By incorporating these elements, the proposed Strict Scrutiny test
aims to strike a balance between the necessity of executive action
in exigent situations and the imperative to uphold the
constitutional principles that underpin the Indian democracy. This
test seeks to provide a structured and comprehensive approach to
assessing the validity of Promulgating Ordinances, allowing the
judiciary to critically evaluate both the circumstances
surrounding the issuance of the ordinance and its underlying
intentions and objectives. In doing so, it offers a more tailored and
nuanced framework for restraining the power of promulgating
ordinances while accounting for the unique challenges and
dynamics of the Indian context.

VI. Conclusion

95
Shubhankar Dam, Making Motives Count: Judicial Review of Ordinances in
India, Statute Law Review, Vol. 33, No. 2, 2012
To conclude, the central objective of this study was to establish a
more defined boundary on the power of Promulgating Ordinances
as outlined in Article 123 of the Constitution. Through a
comprehensive exploration, we delved into their historical
underpinnings within the framework of India's constitutional
democracy, shedding light on the distinctive nature of this
prerogative.

Our examination extended to the pragmatic application of the

Basic Structure Doctrine (BSD) as a constitutional mechanism for
review, showcasing its dynamic and adaptable nature that extends
beyond its initial connection to Article 368. Additionally, we
scrutinized instances where the judiciary has invalidated specific
Ordinances, thereby illustrating the intricate interplay between
executive decision-making and judicial intervention.

In pursuit of a tangible and applicable outcome, our paper

culminated in the proposal of a customized Indian iteration of the
Strict Scrutiny Test. This proposed framework, characterized by
its contextual sensitivity and pragmatic functionality, involves a
tripartite assessment encompassing the situational backdrop, the
underlying motives – including the presence of any ulterior intent,
and an unwavering focus on the core rationale driving the
issuance of the Ordinance, distinct from tangential
considerations.

Ultimately, this tailored test offers a pragmatic avenue for the

judicial assessment of Ordinances, providing a judicious
equilibrium between expeditious executive action and the
imperative to uphold the constitutional fabric.

In sum, this study serves as a significant contribution to the

discourse surrounding the power of Ordinance promulgation,
offering a novel evaluative methodology that reconciles the
exigencies of governance with the imperative of preserving the
constitutional ethos. By navigating through historical, doctrinal,
and practical dimensions, this research paves the way for a more
refined and balanced understanding of Ordinance power within
the Indian constitutional context.