Ordinance Making Power of the President: An Overview

The Ordinance Making Power of the President, under Article 123 of the Indian Constitution, allows the President to promulgate ordinances during the recess of Parliament. This ordinance carries the same legal weight as an Act of Parliament but is temporary. It enables the President to take immediate action in situations where legislative intervention is essential.

However, the ordinance-making power of the President is not absolute and is subject to certain limitations. For instance, an ordinance issued by the President must be approved by Parliament within six weeks of the next session, or it will cease to have effect. This ensures that the use of an ordinance remains a temporary measure, with Parliament retaining the ultimate legislative authority.

Constitutional Provision — Article 123

The ordinance-making power of the President of India is a distinctive feature not commonly found in the Constitutions of many democratic nations, including the U.S.A. and the U.K. Importantly, this power is not limited to times of national emergency, as the President can issue ordinances even in the absence of war, external aggression, or armed rebellion.

• Article 123(1) empowers the President to promulgate ordinances when both Houses of Parliament are not in session, provided that he is satisfied that immediate action is necessary due to urgent circumstances.

What is an Ordinance?

An ordinance is a temporary law enacted by a non-legislative authority, typically the executive, under specific circumstances, and can bring about legislative changes. The Supreme Court has explained that the power to promulgate an ordinance is an emergency authority granted to the executive only, meant to address urgent situations.

History of the Ordinance in India

• The power of ordinance-making in India was first introduced through the Indian Councils Act of 1861, following the Revolt of 1857, to strengthen the position of the Viceroy.
• The Government of India Act, 1935, granted the Governor-General the authority to promulgate ordinances, a provision later adopted in the Indian Constitution under Article 123.

Features of an Ordinance

• An ordinance, similar to any other form of legislation, can have a retrospective effect, meaning it can be enacted to take effect from a previous date.
• An ordinance has the same force and effect as an Act of Parliament and can amend, repeal, or modify any existing Central Act, except the Constitution itself.
• The ordinance can change or amend tax laws.
• An ordinance cannot be used to amend the Constitution.
• An ordinance is subject to constitutional limitations, including Part III (Fundamental Rights). Just like any law passed by Parliament, an ordinance cannot violate or abridge fundamental rights.

Limitations on the Ordinance Making Power

The ordinance-making power of the President is not discretionary; the President can only issue or withdraw an ordinance based on the advice of the Council of Ministers, which is headed by the Prime Minister. This power is subject to four key limitations:

1. Parliamentary Sessions: The President can promulgate an ordinance only when both Houses of Parliament are not in session, or when at least one House is not in session, as legislation requires approval from both Houses. Therefore, the President's power to legislate by ordinance is not equivalent to Parliament's legislative power.
2. Justiciability of the President's Satisfaction: The President can issue an ordinance only if satisfied that immediate action is necessary. In the Cooper case (1970), the Supreme Court ruled that this satisfaction could be challenged in court on grounds of malafide — meaning the President's decision could be questioned if it was made to bypass parliamentary debate on a controversial issue. Initially, the 38th Constitutional Amendment Act of 1975 made the President's satisfaction non-justiciable, but this provision was repealed by the 44th Amendment Act of 1978. As a result, challenges based on malafide intentions remain valid, allowing judicial scrutiny of the President's actions in ordinance-making. Thus, justiciability ensures accountability in exercising this legislative power.
3. Duration and Validity Constraints: The President's ordinance-making power is equivalent to Parliament's law-making authority in all respects except duration. This leads to two implications — an ordinance can only be issued on subjects where Parliament has the power to legislate, and an ordinance is subject to the same constitutional limitations as parliamentary acts, meaning it cannot infringe upon or eliminate any fundamental rights.
4. Maximum Validity Period: Every ordinance issued during Parliament's recess must be presented to both Houses upon reassembly. If both Houses approve it, it becomes an Act; if no action is taken, the ordinance lapses six weeks after Parliament reconvenes. It can also be annulled earlier if both Houses pass resolutions disapproving it. The maximum lifespan of an ordinance can extend to six months and six weeks, considering the longest gap between parliamentary sessions, and any actions taken under the ordinance before it lapses remain valid and effective.

Ordinance Making Power: President (Art 123) vs Governor (Art 213)

Article 213 of the Indian Constitution grants the Governor the authority to promulgate ordinances when the state legislature is not in session, whether unicameral or bicameral. While this power is largely similar to the President's under Article 123, a comparative analysis highlights certain differences.

Re-promulgation of Ordinances

The ordinance-making power requires that when a bill to replace an ordinance is introduced in the Lok Sabha, a statement explaining the need for immediate legislation by ordinance must also be presented.

• D. C. Wadhwa case: The court noted that between 1967 and 1981, the Governor of Bihar issued 256 ordinances, many of which were promulgated repeatedly, keeping them in force for periods of up to fourteen years.
• Violation of the Constitution: The court ruled that continuous promulgation of ordinances with the same provisions, without any effort to have them passed by the legislative assembly, violated the Constitution.
• The court emphasised that the exceptional power to issue ordinances cannot replace the legislative authority of the state legislature.

An ordinance is the executive borrowing Parliament's pen — legitimate in an emergency, unconstitutional when it becomes a habit. The line between "immediate action" and "bypassing the legislature" is exactly what the exam wants you to argue. — Legacy IAS Faculty

Frequently Asked Questions (FAQs)

Can an ordinance amend the Constitution?

No. An ordinance can amend, repeal, or modify any Central Act and even tax laws, but it cannot be used to amend the Constitution, and it cannot violate or abridge Fundamental Rights under Part III.

What is the maximum life of an ordinance?

A maximum of six months and six weeks, arrived at by adding the longest permissible gap between two parliamentary sessions (six months) to the six-week approval window after Parliament reassembles.

Is the President's satisfaction under Article 123 justiciable?

Yes. Since the 44th Amendment (1978) repealed the 38th Amendment's protection, the President's satisfaction can be challenged in court on grounds of malafide, as established in the Cooper case (1970).

What is the difference between Article 123 and Article 213?

Article 123 is the President's ordinance power at the Union level; Article 213 is the Governor's at the state level. The key extra condition under Article 213 is that the Governor may need the President's prior approval in certain matters.

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