Making Motives Count: Judicial Review of Ordinances in India
Singapore Management University - School of Law
June 11, 2011
Statute Law Review, Vol. 33, No. 2, 2012
This article is about the judicial review of presidential satisfaction in Article 123 in India’s Constitution. When a president, for whatever reason, promulgates an ordinance into law, is to open to the courts to review that assessment? Consider a parliamentary analogy. When parliament enacts legislation, courts, in India and elsewhere, frequently review their constitutionality. But parliament’s assessment that a law is needed is generally considered outside the scope of judicial review. On that, courts express no opinion. With ordinances, the president partially morphs into parliament. Should courts, then, review president’s satisfaction that circumstances made it necessary to take immediate action? In addressing that question, I will begin by arguing that syllogistic references to presidential satisfaction in other provisions of the Constitution – a common starting point – are conceptually unhelpful. Thereafter, I will identify three argumentative strategies through which judicial review may be interpreted, and in the process introduce the concept of an "intermediate legislative power" – a category that is neither fully executive, nor fully legislative, but with important components of both. In the rest of the article, I will explain the implications of this concept, while examining how Indian decisions have either rejected or impliedly relied on it. In developing the argument that presidential satisfaction should be reviewable, I will discuss the literature on legislative motive in the US and UK, its role in assessing the constitutionality of legislation and its relevance with respect to ordinances in India.
Number of Pages in PDF File: 22
Keywords: ordinance, India, Article 123, president, motives, judicial review
JEL Classification: K10, K30Accepted Paper Series
Date posted: June 11, 2011
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