A. ORDINANCE 16/2016 IS UNLTRA VIRES OF THE CONSTITUTION OF INDIA.

1. As per the Factual Matrix, The reason for the ordinance was popular print and broad cast
media all over the Country of Cortina taking the chain of events following the statements
against the Chief Ministers Son. This had further encouraged the broadcast debates of
various kinds involving speakers and participants from various walks of lives showcasing
their views on the alleged actions of the Chief Ministers son and the action taken against the
appellant. The popularity of these debates rose to epic levels resulting in a widespread
discontent with the Chief Ministers party loosing much of its credibility with the public over
this singled out issue. This media glare became all the more pressing for the CPFs National
high command as elections were approaching for several states.
2. The factual matrix also states that In the wake of the above stated background, the Union
Government of Cortina promulgated an Ordinance No.16/2016. The Ordinance would
operate in preventing any or all publications, broadcasts whether visual or oral, or any other
form of opinion driven journalism or advertisement etc., that dealt with matters that are
subjudice before the High Courts of various States as well as the Supreme Court of Crotina.
The Ordinance did not bar any accurate reporting of proceedings before the said Courts.
Aggrieved by the Ordinance, various members of the media and press filed Writ Petitions
before various High Courts challenging the Constitutional validity of the ordinance as it was
said to volatile Freedom of Press, Freedom of Speech, and Freedom of Profession among
other Fundamental rights guaranteed under the Constitution of Crotina.
3. The counsel for the petitioners would challenge the ordinance as it states it would operate
in preventing any or all publications, broadcasts whether visual or oral, or any other form of
opinion driven journalism or advertisement etc., that dealt with matters that are subjudice
before the High Courts of various States as well as the Supreme Court of Crotina.
4. Such an ordinance passed by the Government through the means of the exercising the powers
conferred to the president is untravires of the Constitution as it violates Article 19(1)(a) ,
Article 19(1)(g) and Article 21 of the Constitution.
5. Article 19(1)(a) of the Indian Constitution States All citizens shall have the right to freedom
of speech and expression
6. Article 19(1)(g) of the Indian Constitution States All citizens shall have the right to practise
any profession, or to carry on any occupation, trade or business
7.

8. Ordinances were included in the Constitution of India from Government of India Act, 1935,
which gave the authority to the Governor General to promulgate Ordinances. Section 42 and
43 of the said act dealt with Ordinance making power of the Governor General which states
that, If circumstances exist which render it necessary for him to take immediate action, then
9.

only he can use this power.

There were massive discussion and debates related to the Ordinance making power, some of
the members of the Constituent Assembly emphasized that this power of President is against
the constitutional morality and was extra-ordinary in nature, some argued that it should be

left as a provision which should be used during emergencies only.

10. Article 123 of the Indian Constitution grants the President of India certain Law making
powers i.e. to Promulgate Ordinances when either of the two Houses of the Parliament is not
in session which makes it impossible for a single House to pass and enact a law. Ordinances
may relate to any subject that the parliament has the power to make law, and would be having
same limitations. Thus, the following limitations exist:

When legislature is not in session: the President can only promulgate when either of the
House of Parliament is not in session.

Immediate action is needed: the President though has the power of promulgating the
ordinances but same cannot be done unless he is satisfied that there are circumstances
that require him to take immediate action.

Parliament should approve: after the ordinance has been passed it is required to be
approved by the parliament within six weeks of reassembling. The same will cease to
operate if disapproved by either House.

11. The said ordinance does not lie in the ambit of any of the three above specified conditions as
the legislature is in session, there is no immediate action required.
12. The ordinance passed by the government is a example to meet the political ends and the
prevent the public opinion being built up against it .This is a direct violation of the decision
of the Honble Court as held in the case of D.C. Wadhwa v. State of Bihar,1 wherein Chief
Justice P.N. Bhagwati observed: The power to make an ordinance is to meet an
extraordinary situation and it should not be made to meet political ends of an individual.
1 1987 AIR 579.

Though it is contrary to democratic norm for an executive to make a law but this power is
given to the President to meet emergencies so it should be limited in some point of time.
13. Moreover, the immediate action part is also a violation of the case of R.C. Copper v. Union
of India2 wherin constitution validity of the Twenty-fifth Amendment Act, 1971 was
challenged which curtailed the right of property of an individual and permitted the
acquisition of the same by the government for the public use, on the payment of
compensation which has to be determined by the Parliament and not by the court of law. So
in the said case popularly known as Bank Nationalization case, the Apex court while
examining the constitutionality of Banking Companies Ordinance, 1969 which had sought to
nationalize 14 commercial banks in India, it was held that President decision can be
challenged on the ground that no immediate action was required on his part.
14. This Hoble Supreme Court has the upmost power to struck down the ordinance as it itself
has held In the case of A.K. Roy v. Union of India,3 the Supreme Court while examining the
constitutionality of the National Security Ordinance, 1980 which was issued to provide for
preventive detention in certain cases, the Supreme Court argued that the Presidents power of
making Ordinances is not beyond the Judicial Review of the court.
15. K.Nagaraj v. State of Karnataka4, and held that the Power of making Ordinances is a
legislative action so the same grounds as related to the law making should be challenged
than challenging the executive or judicial grounds.
16. Further in the case of S.R. Bommai v. Union of India 5, in this case the scope of Judicial
Review was expanded as to where the court told that where the action by the President is
taken without the relevant materials, the same would be falling under the category of
obviously perverse and the action would be considered to be in bad faith. The Supreme
Court held that the exercise of power by the President under the Article 356(1) to issue
proclamation is Justiciable and subject to Judicial Review to challenge on the ground of
mala fide.
2 1970 AIR 564.
3 1982 AIR 710.
4 1993 (4) SC 27.
5 AIR 1994 SC1918;p. 1969-70.

17. This ordinance is a abuse of power and has to be treared accordingly as was done In case
of State of Orissa v. Bhupendra Kumar Bose 6 the court held that the rights and obligations
which are created by the Ordinance came into effect as soon as the Ordinance is promulgated
and the same cannot be extinguished until a proper legislature by a legislative body
extinguishes those rights and obligations of the Ordinances. However, where the Ordinances
promulgated is an abuse of power and a kind of Fraud on the constitution, then, the state
prevailing with such promulgation should immediately revive.
An ordinance would be made open to challenge on the following grounds:
1. It constitutes colorable legislation; or
2. It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
3. It is violative of substantive provisions of Our Constitution such as an Article 301; or
4. Its retrospectively is unconstitutional.
18. Ordinances are however framed by the executive body which is said to be a single, unified

entity. The President is the head of the executive body who promulgate ordinances on the
advice of the council of ministers. The most important requirement of the promulgation of
the ordinances is the necessity to take the immediate action. Then there will be no difficulty
in ascertaining the satisfaction of the President when there is real need or necessity in
promulgating the Ordinances. Therefore the Counsels for the petitioners would conclude by
stating again that no immediate action was required by the state as moreover fundamental
rights were infringed thereby two conditions of the State of Orissa v. Bhupendra Kumar
Bose7 were violated and therefore such an ordinance is ultravires of the Constitution and
deserves to be struck down.

6 1962 AIR 945.

7 Supra note 6