Ordinance-Making Power of the President (Article 123)

At a Glance

• What it is Power to make temporary laws when Parliament is not in session
• Article Article 123 (Governor: Article 213)
• Life Six weeks from reassembly of Parliament, at most six months plus six weeks
• Review President’s satisfaction can be challenged for malafide
• Exam link UPSC Prelims, Polity: President

Where Does It Fit?

This is the fourteenth topic of the category on the President. Article 123 empowers the President to promulgate ordinances during the recess of Parliament. These have the same force and effect as an Act of Parliament but are temporary laws. It is the most important legislative power of the President.

Four Limitations

1. Timing: An ordinance can be promulgated only when both Houses are not in session, or when either of the two is not in session. It can also be issued when only one House is in session, since a law can be passed by both Houses and not by one alone. An ordinance made when both Houses are in session is void. It is not a parallel power of legislation.
2. Satisfaction: The President must be satisfied that circumstances exist that render it necessary to take immediate action. In Cooper v. Union of India (1970) the Supreme Court held that the satisfaction can be questioned in court on the ground of malafide, for instance if one House or both were prorogued deliberately to promulgate an ordinance on a controversial subject. The 38th Amendment of 1975 made it final and beyond review, but the 44th Amendment of 1978 deleted that.
3. Scope: The power is coextensive with Parliament’s law-making power except for duration. An ordinance can be issued only on subjects on which Parliament can make laws, and is subject to the same constitutional limits as an Act. It cannot abridge or take away any Fundamental Right, because the definition of law in Article 13 includes ordinances.
4. Parliamentary approval: It must be laid before both Houses on reassembly. If approved, it becomes an Act. If Parliament takes no action, it ceases to operate six weeks after reassembly, or earlier if both Houses pass resolutions disapproving it. If the Houses are summoned on different dates, the six weeks run from the later date. The maximum life of an ordinance can therefore be six months and six weeks, six months being the maximum gap between two sessions. Acts done under it before it lapses remain valid.

Other Features

The President can withdraw an ordinance at any time. The power is not discretionary: the President can promulgate or withdraw an ordinance only on the advice of the council of ministers. An ordinance, like any legislation, can be retrospective. It can modify or repeal an Act of Parliament or another ordinance, and can alter a tax law. It cannot be issued to amend the Constitution. The power has no necessary connection with the National Emergency of Article 352: an ordinance can be issued even when there is no war, external aggression or armed rebellion. The Lok Sabha rules require that when a bill replacing an ordinance is introduced, a statement explaining the circumstances necessitating immediate legislation by ordinance is placed before the House.

Why the Power Exists and Governor’s Parallel

The ordinance-making power is unusual and is not found in most democratic constitutions including those of the USA and the UK. Dr Ambedkar justified it as a mechanism enabling the Executive to deal with a situation that may suddenly and immediately arise when Parliament is not in session. In D.C. Wadhwa v. State of Bihar (1986), the Supreme Court dealt with the Governor’s ordinance power: between 1967 and 1981 the Governor of Bihar promulgated 256 ordinances, kept in force for periods from one to fourteen years by repromulgation. The Court ruled that successive repromulgation of ordinances with the same text, without any attempt to get the bills passed by the assembly, is a violation of the Constitution and the ordinance is liable to be struck down, because the power cannot be a substitute for the legislative power of the legislature.

Why Is This Topic Important?

• Most-tested legislative power Limits and duration are asked every year
• Case law Cooper and D.C. Wadhwa
• Fundamental Rights link Ordinances are laws under Article 13

What Came Next?

The next topic covers the position of the President as a nominal versus real executive.

Key People and Terms

• Ordinance Temporary law by the executive
• Recess Period when Parliament is not in session
• Repromulgation Reissuing the same ordinance
• Coextensive Equal in scope except duration
• Malafide Bad faith

Exam Corner

Mains Angle

Questions on this topic usually ask whether ordinances are misused. Use these points to add depth.

• Emergency tool For urgent matters only
• Judicial check Cooper and Wadhwa
• Parliamentary control Six-week approval
• Unusual power Not in the USA or the UK