Section 2 in THE CONSTITUTION (THIRTY-EIGHTH AMENDMENT) ACT, 1975
2. Article 123 empowers the President to promulgate Ordinances when both the Houses of Parliament are not in session if he is satisfied that circumstance exist rendering it necessary to take immediate action. Corresponding powers have been conferred by the Constitution on the Governor under article 213. Similar powers have been conferred on the Administrator under article 239B when the Legislature of a Union territory is not in session. On the plain language of articles 123, 213 and 239B there is no doubt that the satisfaction mentioned in those articles is subjective satisfaction and that it is not justiciable. There is no doubt that this was also the intention of the makers of the Constitution. However, litigation is pending involving the justifiability of this issue and contentions are being raised that the issue is subject to judicial scrutiny. To place the matter beyond doubt, it is proposed to provide in the Constitution that the satisfaction of the President, Governor or Administrator shall be final and conclusive and shall not be questioned in any court on any ground.
