The ordinance-making power

Detail

What an ordinance is

• Ordinance: a temporary law made by the President when Parliament cannot meet to pass a law quickly. It works exactly like an Act of Parliament while it lasts.
• Ordinance-making power of the President: this power is given by Article 123 in Chapter III of Part V, "Legislative Powers of the President". It is the President's only real law-making power.
• Origin: the Constituent Assembly debated it on 23 May 1949 as Draft Article 102. It later became Article 123 [2].
• On advice: the President uses this power only on the advice of the Union Cabinet, under Art. 74. In practice it is the government's power. NCERT counts it among the President's formal legislative powers that are used on the ministers' advice.

When it can be used (Art. 123(1))

• Text: the President may issue an ordinance "except when both Houses of Parliament are in session" [2]. The President must also be "satisfied that circumstances exist which render it necessary for him to take immediate action" [2].
• Two conditions must both be met:
• Recess condition: at least one House is not sitting. So an ordinance can be issued even while one House (for example, the Lok Sabha) is in session and the other is not.

• Urgency condition: the President is satisfied that immediate action is needed.

• Recess vs prorogation: a recess is a break between sessions. Prorogation means the formal end of a session. Ordinances are usually issued after a House is prorogued.

Force and limits (Art. 123(2)–(3), Art. 13)

• Force of law: an ordinance "shall have the same force and effect as an Act of Parliament" [2].
• Subject limit: it can cover only matters on which Parliament can make laws, mainly the Union List and Concurrent List of the Seventh Schedule. If it goes beyond that power, it is void, meaning it has no legal effect (Art. 123(3)) [2].
• 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 like an Act would be.
• No constitutional amendment: an ordinance cannot amend the Constitution. Amendments can only be made by Parliament under Art. 368.
• What it can do:
• It may be retrospective, meaning it can apply to a date in the past.
• It may amend or repeal an existing Act, including a tax law.

Life of an ordinance: the steps

Step	What happens	Time limit or majority
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 runs out
4. Lapse	If no Act replaces it, it stops working	Six weeks from reassembly. If the Houses meet on different dates, the count starts from the later date
5. Early end	Both Houses pass resolutions disapproving it	It ends when the second resolution is passed [2]
6. Withdrawal	The President withdraws it, on advice	At any time [2]

• Statutory resolution: a resolution moved under a power given by the Constitution or a law, such as a resolution to disapprove an ordinance. It is dealt with under parliamentary procedure (see parliamentary-procedure).
• Maximum life is about six months and six weeks:
• Under Art. 85, the gap between two sessions cannot be more than six months.

• The ordinance then gets six more weeks after Parliament reassembles.

• Governors: a Governor has the same power for a state under Art. 213 [4]. It is used on the state ministers' advice (see state-government-governor).

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): this was the bank nationalisation case.
• The Court held that the President's decision to issue an ordinance could be challenged.

• Grounds included that there was no real need for immediate action, or that the ordinance was used only to avoid debate in Parliament [4].

• 38th Amendment (1975): passed during the Emergency. It added Art. 123(4), which made the President's satisfaction final and beyond court review [4].

• 44th Amendment (1978): deleted Art. 123(4). This opened the satisfaction to court review again [4][2].
• A.K. Roy v. Union of India (1982): this case was about the National Security Ordinance, 1980.
• The ordinance power is a legislative power, so it can be reviewed by courts.
• The Court also warned against casual challenges to ordinances [4].

D.C. Wadhwa v. State of Bihar (1986)

• Facts:
• An economics professor, D.C. Wadhwa, found that Bihar issued 256 ordinances between 1967 and 1981 [3].
• 69 of these were re-promulgated, and 11 were kept alive for more than 10 years [3]. Some lasted about 14 years.

• They were never placed before the legislature.

• Holding (five-judge bench): re-promulgation is against the Constitution [3]. The Court called it a "fraud on the Constitution" that subverts the democratic process.

• Key line: the ordinance power is "essentially a power to be used to meet an extraordinary situation" and cannot be "perverted to serve political ends" [5].
• Re-promulgation: issuing an ordinance again, in the same form, after it has lapsed, without getting the legislature to pass it.

Krishna Kumar Singh v. State of Bihar (2017, seven judges)

• Facts: Bihar had an ordinance of 1989 that took over the management of non-government Sanskrit schools. It was re-promulgated again and again and never turned into an Act.
• Holdings (January 2017):
• Re-promulgation is "a fraud on the Constitution and a subversion of democratic legislative processes" [3].
• Laying is mandatory. Not placing an ordinance before the legislature is a serious constitutional wrong.
• Satisfaction can be reviewed. The President's or Governor's satisfaction is not immune. Courts can check whether there was any relevant material behind 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 the 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.

Numbers over time

• 637 ordinances were issued from the 1st Lok Sabha up to April 2014 [5].
• Average per year (central government) [3]:
• 1950s: 7.1
• 1990s: 19.6, the peak decade

• 2010s: 7.9

• Peak year: promulgation was highest in 1993 [4].

• Recent years: 16 ordinances in 2019 and 15 in 2020 [3].
• States in 2020 [3]:
• Kerala: 81
• Karnataka: 24
• Maharashtra: 21

Major cases

Ordinance	What happened
Land Acquisition (Amendment)	First issued in December 2014. Re-promulgated in April and May 2015 [3], then allowed to lapse. The Rajya Sabha was prorogued in March 2015 so that it could be re-issued.
Enemy Property (Amendment)	Promulgated five times (2016-17), then replaced by an Act in 2017
Muslim Women (Protection of Rights on Marriage) (triple talaq)	Issued three times (2018-19), then made an Act in 2019
Farm-sector ordinances	Three ordinances issued in June 2020. They became Acts in September 2020 and were repealed in 2021
GNCTD (Amendment)	Issued in May 2023, days after a Constitution Bench ruling that gave the Delhi government control over services. Became an Act in August 2023

Other re-promulgations

• Securities Laws (Amendment): issued three times in 2013-14 [3][5]
• Indian Medical Council (Amendment): September 2018, re-issued January 2019 [3]
• Commission for Air Quality Management: October 2020, re-issued April 2021 [3]
• Kerala University of Digital Sciences: issued five times between January 2020 and February 2021 [3]

The debate

• Critique:
• Ordinances skip debate and committee scrutiny in Parliament.
• They let the government get around the Rajya Sabha when it lacks a majority there.
• They turn an emergency power into a routine one.

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

• Defence:

• Real emergencies can happen when Parliament is not sitting. Examples include financial crises, security threats and quick response to public anger, such as the Criminal Law (Amendment) Ordinance, 2013 after the Delhi gang rape [5].
• Parliament keeps the final say, because it can disapprove the ordinance or let it lapse.

Prelims Hooks

• Art. 123 covers the President's ordinances. Art. 213 covers the Governor's ordinances. Both sit in chapters titled "Legislative Powers".
• An ordinance can be issued when only one House is in session. It is barred only when both Houses are sitting.
• An ordinance lapses six weeks after Parliament reassembles, counted from the later date if the Houses meet on different dates. It ends earlier if both Houses pass disapproving resolutions. Disapproval by one House alone does not end it.
• Maximum life is about 6 months + 6 weeks, because of the six-month gap rule in Art. 85.
• Trap: an ordinance cannot amend the Constitution. It can be retrospective and can amend tax laws.
• Under Art. 13(3), "law" includes an ordinance, so ordinances are subject to Fundamental Rights.
• 38th Amendment (1975) added Art. 123(4), making the President's satisfaction final. The 44th Amendment (1978) deleted it.
• Case–principle pairs:
• R.C. Cooper (1970): 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 (Bihar, 256 ordinances).

• Krishna Kumar Singh (2017): seven judges held that laying is mandatory and that the effects of a lapsed ordinance do not survive automatically.

• Article 123 was Draft Article 102, debated on 23 May 1949.

Mains Points

• Executive law-making vs parliamentary deliberation:
• Frequent ordinances weaken separation of powers (each organ of government stays in its own field) and executive accountability to Parliament.

• Using them to get around a Rajya Sabha where the government lacks a majority also hurts bicameralism, the system of a Parliament with two Houses.

• Judicial check:

• The path R.C. Cooper → 38th/44th Amendments → A.K. Roy → D.C. Wadhwa → Krishna Kumar Singh shows courts moving from deferring to the executive towards actively checking it.

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

• Reforms:

• Lay down a time limit for replacing an ordinance with a Bill.
• Require a written statement of the urgency behind each ordinance.
• Limit re-promulgation to once.
• Avoid proroguing a House only to make room for a new ordinance.

• The Governors' heavy use of ordinances in some states, such as 81 in Kerala in 2020 [3], shows that state-level checks are needed too.

• Balance: the power is a necessary safety valve for real emergencies. The real issue is how often and why it is used, not whether it should exist.