New Delhi, Jan 21:The Centre took the ordinance route to allow Jallikattu in Tamil Nadu. The Jallikattu matter is pending in the Supreme Court and on Friday the Centre requested the top court to keep in abeyance for a week its verdict.
[Also Read: What the Jallikattu draft ordinance states]
The same was granted and the centre went ahead and cleared the draft ordinance.
Once the President of India promulgates an ordinance, it becomes an Act and remains valid for a period of six weeks until Parliament passes the bill.
There is bound to be a legal challenge to the ordinance in the wake of the matter pending in the SC. The centre will place the ordinance before the SC before the final verdict is delivered. What are the powers of the SC in such a case? Can it strike down an ordinance? Let us find out.
Can Supreme Court strike down an ordinance?
In the RC Cooper vs. Union of India case of 1970 the apex court held that an ordinance can be challenged on the ground that immediate action was not required and the same had been passed only to by-pass a debate and discussion in the legislature.
In the AK Roy vs Union of India case of 1982, the SC was examining the Constitutional validity of the National Security Ordinance of 1980 which dealt with preventive detention in certain cases.
In this matter the apex court observed that the President's Ordinance is not beyond the scope of judicial review. The SC, however, stopped at that as there was not enough evidence before it and by the time the ordinance had been replaced by an Act.
The SC, however, pointed out the need to exercise judicial review over the President's decision only when there was substantial ground to challenge the decision. It cannot be challenged at every casual and passing challenge, the SC added.
In the 1985 case of T Venkata Reddy vs the State of Andhra Pradesh, the SC while deliberating on an ordinance said that the ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of Parliament and state legislatures respectively.
This implies that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.
In the DC Wadhwa vs State of Bihar case of 1987, the SC argued that if ordinance making was made a usual practice, creating an 'Ordinance raj' the courts could strike down re-promulgated Ordinances.
In this context one would also need to look at the clauses introduced in the 38th and 44th amendment to the Constitution. In the 38th amendment, a new clause 4 in Article 123 was inserted.
It was stated that the President's satisfaction while promulgating an ordinance was final and cannot be questioned in any court on any ground.
However, in 1978 clause 4 was deleted in the 44th amendment and this re-opened the possibility of judicial review of an ordinance.