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PRAYAS GS2 Day 03

Q.1 Discuss the powers and limitations of the President of India in promulgating ordinances under
Article 123 of the Constitution. Examine the constitutional and legal safeguards to prevent misuse
of this power. (250 words 15 Marks)

Approach
1. Question Tag: Discuss
2. Keywords: Powers, limitations, President of India, promulgating ordinances, Article 123,
Constitution, constitutional safeguards, legal safeguards, misuse of power
3. How to Answer: The question requires an exploration of the President's power to promulgate
ordinances under Article 123, the limitations of this power, and the safeguards in place to prevent its
misuse.
4. Key Elements:
○ Introduction: Briefly introduce the concept of ordinances and Article 123.
○ Body:
■ Powers of the President to Promulgate Ordinances: Explain the conditions and
extent of the power.
■ Limitations of the President's Power: Discuss the checks and balances.
■ Constitutional and Legal Safeguards: Examine the measures in place to prevent
misuse.
○ Conclusion: Summarize the importance of the safeguards and the need for balanced use of
the ordinance-making power.

Model Answer
Introduction: Article 123 of the Indian Constitution grants the President the power to promulgate
ordinances when both Houses of Parliament are not in session and immediate legislative action is
necessary. This power is meant to address urgent situations that require swift legal measures.

Body:
Powers of the President to Promulgate Ordinances:
1. Conditions for Promulgation:
○ The President can promulgate ordinances only when either House of Parliament is not in
session.
○ Example: The President promulgated the Enemy Property (Amendment and Validation)
Ordinance in 2016 when the Parliament was not in session to address immediate security
concerns.
2. Extent of Power:
○ Ordinances have the same force and effect as an act of Parliament.
○ Example: The Banking Regulation (Amendment) Ordinance, 2020, allowed RBI to
restructure cooperative banks.
3. Approval:
○ An ordinance must be laid before both Houses of Parliament and ceases to operate unless
approved by both Houses.
Limitations of the President's Power:
1. Non-Substitution for Regular Legislation:
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○ Ordinances cannot replace the regular legislative process and should only be used in
exceptional circumstances.
○ Frequent re-promulgation of ordinances without placing them before Parliament is not
permitted.
2. Judicial Review:
○ The President’s ordinance-making power is subject to judicial review.
○ The Supreme Court in D.C. Wadhwa v. State of Bihar (1987) held that re-promulgation of
ordinances is unconstitutional.
3. Jurisdiction:
○ The President can only promulgate ordinances on subjects on which Parliament has the
power to legislate.

Constitutional Safeguards:

1. Parliamentary Approval:
○ Ordinances must be approved by both Houses of Parliament within six weeks of reassembly.
○ This ensures democratic scrutiny and accountability, preventing the executive from
bypassing the legislative process.
2. Limited Duration:
○ Ordinances have a limited life span and cannot remain in force indefinitely without
parliamentary approval.
○ Ensures that temporary measures do not become permanent laws without legislative
consent.
3. Re-Promulgation Restrictions:
○ The re-promulgation of ordinances without placing them before Parliament is constitutionally
discouraged.
○ This prevents the executive from bypassing the legislature repeatedly, maintaining the
balance of power.
4. Cabinet Responsibility:
○ The ordinance-making power is exercised on the advice of the Council of Ministers, ensuring
collective responsibility.
○ Ensures that the executive’s decisions are subject to collective scrutiny and accountability.

Legal Safeguards:

1. Judicial Oversight:
○ The judiciary can review the necessity and validity of an ordinance.
○ Example: The Supreme Court in Krishna Kumar Singh v. State of Bihar (2017) ruled that
re-promulgation of ordinances without legislative approval is unconstitutional.
2. Constitutional Validity:
○ Ordinances must comply with the Constitution, including Fundamental Rights and other
constitutional provisions.
○ Example: An ordinance violating Article 14 (Right to Equality) can be struck down by the
courts.
3. Doctrine of Proportionality:
○ Courts can use the doctrine of proportionality to assess whether the ordinance is appropriate
and necessary for the situation.
○ Ensures that the executive’s actions are reasonable and proportionate to the circumstances.
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4. Legislative Scrutiny:
○ Once Parliament is in session, ordinances must be scrutinized and debated by the members
of both Houses.
○ This ensures that ordinances undergo the same level of scrutiny as regular bills, maintaining
legislative oversight.

Conclusion: The power of the President to promulgate ordinances under Article 123 is a vital tool for
addressing urgent legislative needs. However, constitutional and legal safeguards are in place to prevent its
misuse, ensuring that this power is exercised judiciously and in alignment with democratic principles. These
safeguards uphold the balance between the executive's need for swift action and the legislature's role in
democratic governance.

Q.2 Compare the impeachment procedures for the head of state in India and the United States.
Discuss the safeguards in place to ensure a fair trial in both countries. (10 Marks 150 Words)

Approach
1. Question Tag: Compare, Discuss
2. Keywords: Impeachment procedures, head of state, India, United States, safeguards, fair trial
3. How to Answer: The question requires a comparison of the impeachment procedures for the head
of state in India and the United States and a discussion on the safeguards in place to ensure a fair
trial in both countries.
4. Key Elements:
○ Introduction: Briefly introduce the concept of impeachment.
○ Body:
■ Impeachment Procedure in India: Outline the steps and process.
■ Impeachment Procedure in the United States: Outline the steps and process.
■ Comparison: Highlight the key similarities and differences between the two
procedures.
■ Safeguards for a Fair Trial: Discuss the safeguards in place in both countries to
ensure fairness in the impeachment process.
○ Conclusion: Summarize the significance of these procedures and safeguards in maintaining
democratic accountability.

Model Answer
Introduction: Impeachment is the process by which a sitting head of state can be removed from office for
misconduct. Both India and the United States have established procedures for impeachment, reflecting
their commitment to democratic accountability and the rule of law.
Body:
Impeachment Procedure in India:
1. Grounds for Impeachment:
○ The President of India can be impeached for "violation of the Constitution" under Article 61
of the Constitution.
2. Initiation of Process:
○ Impeachment can be initiated in either House of Parliament.
○ The process begins with a notice signed by at least one-fourth of the total number of
members of the House where it is introduced.
3. Investigation:
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○ The notice is investigated, and a resolution to impeach must be passed by a two-thirds
majority of the total membership of that House.
4. Trial and Removal:
○ If the resolution is passed, it is sent to the other House, which investigates the charges.
○ The President has the right to appear and be represented at such investigation.
○ If the second House also passes the resolution by a two-thirds majority of its total
membership, the President is impeached and removed from office.
Impeachment Procedure in the United States:
1. Grounds for Impeachment:
○ The President of the United States can be impeached for "Treason, Bribery, or other high
Crimes and Misdemeanors" under Article II, Section 4 of the U.S. Constitution.
2. Initiation of Process:
○ Impeachment proceedings are initiated in the House of Representatives.
○ The process begins with the introduction of articles of impeachment.
3. Investigation:
○ The House Judiciary Committee investigates the charges and drafts articles of
impeachment.
○ The full House votes on the articles. A simple majority is required to impeach the President.
4. Trial and Removal:
○ Once impeached, the President is tried by the Senate.
○ The Chief Justice of the Supreme Court presides over the trial.
○ A two-thirds majority of the Senate is required to convict and remove the President from
office.
Safeguards for a Fair Trial:
India:
1. Bicameral Investigation:
○ Ensures that both Houses of Parliament must agree on the impeachment, providing a double
layer of scrutiny.
2. Right to Defense:
○ The President has the right to appear and be represented during the investigation in the
second House.
3. High Threshold:
○ The requirement of a two-thirds majority in both Houses ensures that impeachment is a
rigorous process, preventing frivolous or politically motivated actions.
United States:
1. Judicial Oversight:
○ The Chief Justice of the Supreme Court presides over the Senate trial, ensuring judicial
oversight.
2. Bicameral Process:
○ The involvement of both the House of Representatives and the Senate ensures
comprehensive scrutiny.
3. Public and Transparent Proceedings:
○ Impeachment proceedings are public, providing transparency and accountability.
4. High Threshold for Conviction:
○ The two-thirds majority required in the Senate for conviction ensures that removal is only for
serious offenses, preventing misuse of the process for political purposes.
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Conclusion: The impeachment procedures for the head of state in both India and the United States reflect
their democratic principles and commitment to accountability. The safeguards in place ensure that the
process is fair and rigorous, protecting against misuse and ensuring that impeachment is reserved for
serious violations of constitutional principles. These mechanisms are crucial for maintaining the integrity of
the highest office in both countries.