UPSC Prelims 2025 Q51: Ordinance-Making Power and Its Limits — Explained

With reference to the Indian polity, consider the following statements:

I. An Ordinance can amend any Central Act.

II. An Ordinance can abridge a Fundamental Right.

III. An Ordinance can come into effect from a back date.

Which of the statements given above are correct?

  1. I and II only
  2. II and III only
  3. I and III only
  4. I, II and III

Answer: (c) I and III only

Statement-wise explanation

  • I: correct — Article 123(2) says an Ordinance has the same force and effect as an Act of Parliament. So it can amend or repeal any Central Act on a subject Parliament could legislate on. Article 123(3) sets the only limit: a provision Parliament itself could not enact is void. An Ordinance cannot amend the Constitution, because that needs the Article 368 procedure, but the statement is about Central Acts.
  • II: incorrect — Article 13(3)(a) expressly includes 'any Ordinance' in the meaning of 'law'. Article 13(2) bars the State from making any law that takes away or abridges a Fundamental Right, and such a law is void to the extent of the contravention. An Ordinance faces the same limits as an Act of Parliament.
  • III: correct — Parliament can make laws with retrospective effect, and an Ordinance has the same force as an Act of Parliament, so it can also take effect from a back date. The Supreme Court accepted this in T. Venkata Reddy v. State of Andhra Pradesh (1985), which put Ordinances on par with legislation. Article 20(1) bars retrospective criminal laws, and that limit binds Acts and Ordinances alike.

How to eliminate

Statement II can be judged from basic knowledge. Article 13(3)(a) names 'Ordinance' in the definition of 'law', and no law may abridge a Fundamental Right. Once II is out, three options are gone (I and II only; II and III only; I, II and III), and only 'I and III only' is left. You never need to settle Statements I and III. A general rule also helps: whatever Parliament can do by ordinary law, an Ordinance can do for a limited time, and whatever Parliament cannot do, an Ordinance cannot do. The word 'any' in Statement I is safe because the comparison is with an Act of Parliament, not with the Constitution. The fact to remember: Ordinance = 'law' under Article 13(3)(a).

Know more

Article 123: what an Ordinance is. The President can promulgate an Ordinance only when at least one House of Parliament is not in session. The President must be satisfied that circumstances make immediate action necessary, and acts on the advice of the Council of Ministers.

Life of an Ordinance. It must be laid before both Houses. It lapses six weeks after Parliament reassembles, or earlier if both Houses pass resolutions disapproving it. The President can also withdraw it at any time. The gap between two sessions cannot exceed six months (Article 85), so an Ordinance can last at most about six months and six weeks without Parliament's approval.

Judicial review. The 38th Amendment (1975) made the President's satisfaction final and outside court review. The 44th Amendment (1978) removed that clause. In D.C. Wadhwa (1987), Bihar was found to have re-promulgated 259 ordinances, some for 14 years, and the Court struck down this 'Ordinance raj'. In Krishna Kumar Singh (2017), a seven-judge bench held that re-promulgation without placing ordinances before the legislature is a fraud on the Constitution, and that the satisfaction behind an Ordinance can be reviewed.

Feature President (Art. 123) Governor (Art. 213)
When Either House not in session Assembly (or either House, if bicameral) not in session
Scope Subjects Parliament can legislate on Subjects the State Legislature can legislate on
Prior approval None President's instructions needed in three specified cases
Bound by Fundamental Rights Yes, Art. 13(3)(a) Yes, Art. 13(3)(a)
Lapse 6 weeks after Parliament reassembles 6 weeks after the Legislature reassembles

Limits to remember: an Ordinance cannot amend the Constitution and cannot abridge a Fundamental Right. It can amend Central Acts, including tax laws, and it can be retrospective.

NCERT Concepts to Revise

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