The Ordinance-Making Power of the President of India, given under Article 123 of the Constitution of India, is an important legislative power used by the executive when Parliament is not sitting. An ordinance is a temporary law. It has the same legal force as an ordinary Act of Parliament, but it cannot remain forever without Parliament’s approval. This power helps the government act quickly during an emergency or when an urgent matter cannot wait until the next parliamentary session. However, the Constitution does not give the President unlimited authority. The power is controlled by important limitations, including the need for immediate necessity, approval by Parliament within six weeks of its reassembly, judicial review after the 44th Constitutional Amendment, and restrictions on repeated repromulgation.
🎯 In this chapter, you will understand:
- What the ordinance-making power of the President under Article 123 means.
- Why ordinances have the same legal force as an Act of Parliament.
- The four major constitutional limitations on the President’s ordinance power.
- How judicial review, withdrawal, retrospective effect, and repromulgation affect ordinances.
💡 Why this topic matters: The ordinance power keeps the government prepared to handle urgent situations even when Parliament is not in session. At the same time, it shows how the Constitution balances quick executive action with democratic control by Parliament and review by the courts.
🧠 Core Idea: An ordinance is a temporary law made by the President when Parliament cannot meet. It is powerful, but it must be necessary, constitutional, placed before Parliament, and approved within the required time.
Delving into the Ordinance-Making Power of the Indian President under Article 123
The President’s authority to issue ordinances is a quasi-legislative power. This means that although the President is part of the executive, this power allows the executive to make a law-like measure in a special situation. The main reason for this power is to make sure that the government does not become helpless simply because Parliament is not currently meeting. In a large and active democracy, urgent problems may arise at any time. Therefore, the Constitution gives the Union Executive a way to respond quickly, while still keeping final law-making authority with Parliament.
The President’s power to issue ordinances is designed to provide timely action when the legislative branch is absent. It is available only during a parliamentary recess and is meant to bridge the gap between urgent administrative needs and the normal legislative calendar.
- (i) The power is specifically granted by Article 123 of the Constitution of India, which empowers the President to promulgate ordinances.
- (ii) These ordinances carry the same legal force and effect as a regular Act of Parliament. They can create new laws, repeal existing laws, or amend non-constitutional legislation.
- (iii) The purpose is to allow the Union Executive to address genuine unforeseen or urgent matters that require immediate legislative attention when Parliament cannot convene.
The Four Constitutional Limitations on Ordinance Power and Its Checks
Although an ordinance has strong legal effect, the Constitution places serious restrictions on it. These restrictions ensure that the President and the government do not use ordinances to avoid Parliament or make laws permanently without democratic discussion. The ordinance power is meant to be an emergency tool, not a regular substitute for Parliament’s law-making work.
Limitation 1: Parliamentary Session Requirement
The first and most basic condition is that an ordinance can be issued only when Parliament is not available to make laws. This condition makes it clear that ordinances are not meant to compete with Parliament. If both Houses of Parliament are sitting, the President cannot bypass them by issuing an ordinance.
- (a) An ordinance can be issued only when one or both Houses of Parliament are not in session. If both Houses are currently sitting, an ordinance issued at that time is constitutionally void.
- (b) This rule shows that ordinance-making is a subsidiary function. It supports the legislative process in exceptional situations but cannot replace or defy the normal process of law-making.
Limitation 2: Immediate Necessity and Judicial Review
The President must be satisfied that immediate action is necessary. However, this satisfaction is not completely beyond the reach of the courts. The Supreme Court has made it clear that the President’s decision can be examined if it is taken in bad faith, irrationally, or by considering irrelevant matters.
- (i) The President must be satisfied that circumstances exist which make immediate action necessary. This satisfaction is based on the advice of the Council of Ministers.
- (ii) In the landmark Cooper Case of , the Supreme Court held that the President’s satisfaction could be subject to judicial review if it was proved to be mala fide, meaning done in bad faith.
- (iii) The 38th Constitutional Amendment of tried to make the President’s satisfaction final and non-justiciable. However, the 44th Constitutional Amendment of restored judicial review in cases of bad faith, irrationality, or extraneous considerations.
Limitation 3: Subject-Matter and Constitutional Restriction
An ordinance cannot deal with a subject that Parliament itself is not allowed to legislate upon. It must remain within the constitutional limits that apply to ordinary parliamentary laws. This prevents the executive from using an ordinance to cross boundaries that the Constitution has clearly fixed.
- (i) The ordinance must cover a subject within the legislative competence of Parliament, mainly subjects in the Union List and Concurrent List.
- (ii) Like any ordinary law, an ordinance cannot violate any provision of the Constitution, especially the Fundamental Rights guaranteed to citizens.
Limitation 4: Mandate for Parliamentary Presentation and Maximum Life
Every ordinance has a limited life. Once Parliament reassembles, the ordinance must be placed before both Houses. Parliament may approve it and convert it into an Act, or it may allow it to lapse. This rule ensures that temporary executive law-making finally comes under democratic scrutiny.
- (i) The ordinance must be laid before both Houses of Parliament when they reassemble.
- (ii) If Parliament approves it, it becomes a permanent Act. If no action is taken by either House, the ordinance automatically ceases to operate six weeks from the date Parliament reassembles.
- (iii) The maximum life of an ordinance is six months plus six weeks. Six months is the maximum permitted gap between two sessions of Parliament, and six weeks is the period given to Parliament after reassembly to act on the ordinance.
- (iv) Actions already taken under an ordinance before it lapses remain valid and legally binding.
Retrospective Effect, Withdrawal, and the Constitutional Limitations
The ordinance power is flexible in some ways. The President can withdraw an ordinance, and an ordinance may even apply to events that happened before it was issued. However, this flexibility does not mean that the executive can change the Constitution through an ordinance. Constitutional amendment remains a special power of Parliament, subject to the constitutional procedure.
Scope of Application and Restriction on Constitutional Amendment
The President acts on the advice of the Prime Minister and the Council of Ministers while managing an ordinance. This includes decisions about withdrawing it or deciding how it should apply. Still, the Constitution keeps a firm boundary: an ordinance cannot be used to amend the Constitution itself.
- (a) The President can withdraw an ordinance at any time, provided the decision is based on the advice of the Council of Ministers.
- (b) Ordinances can operate retrospectively. This means they may apply to events that occurred before the ordinance was promulgated. They can also modify or repeal existing Acts or ordinances, and may amend tax laws.
- (c) However, an ordinance cannot amend the Constitution. This restriction reaffirms Parliament’s exclusive power over constitutional revision.
Concerns over Repromulgation and the Supreme Court Warning
Repromulgation means issuing an ordinance again after it has expired, instead of getting it approved by the legislature. This practice can allow the executive to keep a temporary law alive for years without proper parliamentary debate. The Supreme Court has strongly criticized such misuse because it weakens the democratic law-making process.
Judicial Condemnation of Executive Overreach
Although the Supreme Court’s main warning in this area came in a state-level case, its principle applies to the broader constitutional idea that ordinance power must remain exceptional. Repeated repromulgation turns a temporary emergency device into a permanent law-making method, which the Constitution does not permit.
- (i) In the famous D.C. Wadhwa Case of , the Supreme Court examined the practice of the Governor of Bihar repeatedly repromulgating ordinances between and , without seeking legislative approval.
- (ii) The Court held that such excessive repromulgation is a “fraud on the Constitution” and violates the legislative function of Parliament or the state legislature.
- (iii) This principle supports Dr. B.R. Ambedkar’s view that ordinance power is meant only for exceptional emergencies and cannot become a substitute for regular democratic law-making.
⚡ Quick Revision Capsule: Ordinance-Making Power under Article 123
The table below gives a quick view of the main rules related to the President’s ordinance-making power. It is useful for revision before examinations because it brings together the source of power, its nature, and its major limits.
| Aspect | Key Rule | Important Point |
|---|---|---|
| Constitutional Source | Article 123 of the Constitution of India | Empowers the President to promulgate ordinances. |
| When It Can Be Used | When one or both Houses of Parliament are not in session | It cannot be used while both Houses are sitting. |
| Legal Force | Same force as an Act of Parliament | It can make, amend, or repeal ordinary laws. |
| Judicial Review | Restored by the 44th Constitutional Amendment | Courts can review bad faith, irrationality, or extraneous considerations. |
| Maximum Life | Six months plus six weeks | It must be laid before Parliament and approved within six weeks of reassembly. |
📝 Summary
The ordinance-making power under Article 123 is a temporary legislative tool given to the President, acting on the advice of the Council of Ministers, to deal with urgent matters when Parliament is not in session. An ordinance has the same legal force as an ordinary Act of Parliament, but it cannot become a permanent replacement for parliamentary law-making. It must meet the test of immediate necessity, remain within Parliament’s legislative competence, and cannot violate the Constitution or Fundamental Rights. After Parliament reassembles, the ordinance must be placed before both Houses and ceases to operate six weeks later if it is not approved. The 44th Constitutional Amendment restored judicial review of the President’s satisfaction, while the Supreme Court’s warning against repeated repromulgation protects the democratic character of law-making.
🚀 Quick Revision Points
Essential facts to review before examinations:
- (i) The President’s ordinance power comes from Article 123 and is a quasi-legislative power.
- (ii) An ordinance can be issued only when one or both Houses of Parliament are not in session.
- (iii) An ordinance must be based on immediate necessity and cannot violate Fundamental Rights.
- (iv) The 44th Constitutional Amendment restored judicial review of the President’s satisfaction.
- (v) An ordinance must be laid before both Houses of Parliament and lapses six weeks after reassembly if not approved.
- (vi) Repeated repromulgation without legislative approval was condemned in the D.C. Wadhwa Case as a fraud on the Constitution.
- 💡 Exam Tip: Remember the formula 6 months + 6 weeks for the maximum life of an ordinance. Also remember that ordinances can amend ordinary laws and tax laws, but they cannot amend the Constitution.
❓ Frequently Asked Questions (FAQ)
Q1: What is an ordinance?
A1: An ordinance is a temporary law promulgated by the President when Parliament is not in session and immediate action is necessary.Q2: Can an ordinance violate Fundamental Rights?
A2: No. Like any ordinary law, an ordinance cannot violate the Constitution or the Fundamental Rights of citizens.Q3: Why is repeated repromulgation objectionable?
A3: Repeated repromulgation keeps a temporary law alive without parliamentary approval. In the D.C. Wadhwa Case, the Supreme Court called excessive repromulgation a fraud on the Constitution because it bypasses the democratic legislative process.
