Ordinance-making power of the President

Also called: Article 123 · Topic: Union Executive: President, Vice-President, Prime Minister and Council of Ministers · NCERT: Beyond NCERT

Meaning

The ordinance-making power of the President (Article 123) lets the President make a temporary law, called an ordinance, when at least one House of Parliament is not in session and the President is satisfied that immediate action is needed. While it lasts, an ordinance has the same force as an Act of Parliament. It is the President's only real law-making power. It is useful in a real emergency. But governments have often used it to make laws without debate in Parliament, so it is a frequent exam and news topic.

Explanation

What an ordinance is and who really issues it

• Ordinance: a temporary law made by the President when Parliament cannot meet to pass a law quickly. While it lasts, it works exactly like an Act of Parliament.
• Where it sits: Article 123, in Chapter III of Part V, "Legislative Powers of the President".
• On advice: the President issues an ordinance only on the advice of the Union Cabinet (Art. 74).
• So in practice, this is the government's power.
• NCERT lists it among the President's formal legislative powers that are used on the ministers' advice.

When it can be issued (Art. 123(1)): two conditions

• Text: the President may issue an ordinance "except when both Houses of Parliament are in session" [1].
• Recess condition: at least one House must not be sitting.
• So an ordinance can be issued even while one House (for example, the Lok Sabha) is in session.

• Ordinances are usually issued after a House is prorogued. Prorogation means the formal end of a session. A recess is the break between two sessions.

• Urgency condition: the President must be "satisfied that circumstances exist which render it necessary for him to take immediate action" [1].

• Both conditions must be met.

What an ordinance can and cannot do

• Force of law: an ordinance "shall have the same force and effect as an Act of Parliament" [1].
• Subject limit: it can cover only matters on which Parliament can make laws. These are mainly the Union List and the Concurrent List of the Seventh Schedule. If it goes beyond Parliament's power, it is void, which means it has no legal effect (Art. 123(3)) [1].
• Fundamental Rights limit: under Art. 13(3), the word "law" includes an ordinance. So an ordinance that takes away a Fundamental Right is void, just as an Act would be.
• Cannot amend the Constitution: only Parliament can amend the Constitution, under Art. 368.
• Can:
• be retrospective, which means it can apply from a date in the past
• amend or repeal an existing Act, including a tax law

Life of an ordinance: the steps

Step	What happens	Time limit or condition
1. Promulgation	The Cabinet advises and the President signs the ordinance	Only when at least one House is not in session
2. Laying	The ordinance is placed before both Houses after they reassemble	Mandatory (Art. 123(2)(a))
3. Approval	Parliament passes a Bill to replace it with a permanent Act	Before the six-week limit ends
4. Lapse	If no Act replaces it, it stops working	Six weeks from reassembly. If the Houses meet on different dates, count from the later date
5. Early end	Both Houses pass resolutions disapproving it	It ends when the second resolution is passed [1]
6. Withdrawal	The President withdraws it, on advice	At any time [1]

• Statutory resolution: a resolution moved under a power given by the Constitution or a law. A resolution to disapprove an ordinance is one example.
• Maximum life of about six months and six weeks:
• Under Art. 85, the gap between two sessions cannot be more than six months.
• After Parliament reassembles, the ordinance gets six more weeks.

In the Constitution and practice

• Origin: the Constituent Assembly debated this power on 23 May 1949 as Draft Article 102. It later became Article 123 [1].
• Governors: a Governor has the same power for a state under Art. 213 [3]. It is used on the advice of the state's ministers.

How judicial review changed over time

• Judicial review: the power of courts to check whether a government action or law follows the Constitution, and to strike it down if it does not.
• R.C. Cooper v. Union of India (1970), the bank nationalisation case: the Court held that the decision to issue an ordinance could be challenged. One ground was that there was no real need for immediate action. Another was that the ordinance was used only to avoid debate in Parliament [3].
• 38th Amendment (1975): passed during the Emergency. It added Art. 123(4), which made the President's satisfaction final and beyond court review [3].
• 44th Amendment (1978): deleted Art. 123(4). Courts could again review the President's satisfaction [3][1].
• A.K. Roy v. Union of India (1982), on the National Security Ordinance, 1980:
• The ordinance power is a legislative power, so courts can review it.

• The Court also warned against casual challenges to ordinances [3].

• D.C. Wadhwa v. State of Bihar (1986), five judges:

• D.C. Wadhwa, an economics professor, found that Bihar issued 256 ordinances between 1967 and 1981 [2].
• 69 of them were re-promulgated, and 11 were kept alive for more than 10 years [2].
• Re-promulgation means issuing a lapsed ordinance again in the same form, without the legislature ever passing it.
• The Court held that re-promulgation is against the Constitution [2] and called it a "fraud on the Constitution".

• It said the power is "essentially a power to be used to meet an extraordinary situation" and cannot be "perverted to serve political ends" [4].

• Krishna Kumar Singh v. State of Bihar (2017), seven judges: the case was about a 1989 Bihar ordinance on non-government Sanskrit schools. It was re-promulgated again and again and never became an Act.

• Re-promulgation is "a fraud on the Constitution and a subversion of democratic legislative processes" [2].
• Laying is mandatory. Failing to place an ordinance before the legislature is a serious constitutional wrong.
• Satisfaction can be reviewed. Courts can check whether any relevant material supported it, or whether it was based on bad faith or improper reasons.
• Lapsed effects do not survive automatically. Rights and actions created under a lapsed ordinance are not saved automatically. Each one is tested against public interest and constitutional necessity.

Practice: "ordinance raj"

• Ordinance raj: a critical term for governments using ordinances as a normal way to make laws instead of only in emergencies.
• 637 ordinances were issued from the 1st Lok Sabha up to April 2014 [4].
• Average per year (Centre): 7.1 in the 1950s, 19.6 in the 1990s (the peak decade) and 7.9 in the 2010s [2]. The highest single year was 1993 [3].
• There were 16 ordinances in 2019 and 15 in 2020 [2]. Among the states in 2020, Kerala issued 81, Karnataka 24 and Maharashtra 21 [2].
• Key instances:
• Land Acquisition (Amendment): first issued in December 2014 and re-promulgated in April and May 2015 [2], then allowed to lapse. The Rajya Sabha was prorogued in March 2015 so that the ordinance could be issued again.
• Enemy Property (Amendment): promulgated five times (2016-17), then replaced by an Act in 2017.
• Muslim Women (Protection of Rights on Marriage), the triple talaq ordinance: issued three times (2018-19), then made an Act in 2019.
• Farm-sector ordinances: issued in June 2020, made Acts in September 2020 and repealed in 2021.
• GNCTD (Amendment): issued in May 2023, days after a Constitution Bench ruling that gave the Delhi government control over services. It became an Act in August 2023.
• Criminal Law (Amendment) Ordinance, 2013: issued after the Delhi gang rape. It is often given as an example of a valid quick response to public anger [4].

Don't confuse with

• Governor's ordinance (Art. 213): the same kind of power, but used by a Governor for a state on the advice of the state's ministers. Article 123 is for the President and the Union.
• Act of Parliament: it has the same force while it lasts, but an ordinance is temporary. It lapses six weeks after Parliament reassembles unless Parliament replaces it with an Act.
• Constitutional amendment (Art. 368): only Parliament can amend the Constitution. An ordinance can never do it, though it can amend ordinary laws, including tax laws.
• Disapproval by one House: this does not end an ordinance. It ends early only when both Houses pass disapproving resolutions.

Prelims Hooks

• Art. 123 covers the President's ordinances and Art. 213 covers the Governor's. Both sit in chapters titled "Legislative Powers".
• Trap: an ordinance can be issued while one House is in session. It is barred only when both Houses are sitting.
• An ordinance lapses six weeks after reassembly, counted from the later date. Its maximum life is about 6 months + 6 weeks because of Art. 85.
• Trap: an ordinance cannot amend the Constitution, but it can be retrospective and can amend tax laws. Under Art. 13(3), an ordinance counts as "law", so it is subject to Fundamental Rights.
• The 38th Amendment (1975) added Art. 123(4) and made the President's satisfaction final. The 44th Amendment (1978) deleted it.
• Case–principle pairs:
• R.C. Cooper (1970): the President's satisfaction can be challenged.
• A.K. Roy (1982): the power is legislative and reviewable.
• D.C. Wadhwa (1986): re-promulgation is a fraud on the Constitution.
• Krishna Kumar Singh (2017, seven judges): laying is mandatory and the effects of a lapsed ordinance do not survive automatically.

Mains Points

• Executive law-making against parliamentary debate:
• Ordinances skip debate and committee scrutiny. They weaken separation of powers (each organ of government stays in its own field) and make the executive less accountable to Parliament.
• Using them to get around a Rajya Sabha where the government lacks a majority hurts bicameralism, the system of a Parliament with two Houses. The Land Acquisition ordinance (2014-15) is an example.

• They create "facts on the ground" that Parliament later finds hard to undo.

• Growing judicial check:

• The line from R.C. Cooper to the 38th and 44th Amendments, then A.K. Roy, D.C. Wadhwa and Krishna Kumar Singh shows courts moving from accepting the executive's decision to actively checking it.

• Krishna Kumar Singh's "relevant material" test and its rule that lapsed effects are not saved automatically are now the main limits.

• Reforms and balance:

• Set a time limit for replacing an ordinance with a Bill.
• Require a written statement of the urgency behind each ordinance.
• Allow re-promulgation only once.
• Do not prorogue a House just to make room for an ordinance.
• Check states too: Kerala issued 81 ordinances in 2020 [2].
• The power is still a needed safety valve for real emergencies, and Parliament keeps the final say. The real issue is how often and why it is used, not whether it should exist.

Related concepts

• D.C. Wadhwa case
• Krishna Kumar Singh case

Read more

• The ordinance-making power