Ordinance

1. Constitutional basis and nature

Article 123 appears in Chapter III of Part V, titled Legislative Powers of the President. It enables the President to promulgate ordinances when Parliament is not fully in session and immediate legislation is necessary. Although exercised through the executive, ordinance-making is legislative in character. It is distinct from issuing administrative orders or making delegated legislation under an existing statute.

An ordinance has the same force and effect as an Act of Parliament during its operation. It can create legal rights and obligations, amend or repeal ordinary laws, impose liabilities and, within constitutional limits, operate retrospectively. However, it is a temporary constitutional instrument rather than a substitute for the regular legislative process.

The power is exceptional, but it does not depend on the proclamation of a National Emergency under Article 352. Its constitutional justification is the need to address circumstances that cannot reasonably await Parliament’s ordinary law-making process. Political convenience, avoidance of debate or difficulty securing legislative support cannot by themselves justify bypassing representative institutions.

• Article 123: Union ordinance-making power.
• Article 213: corresponding power at the state level.
• Article 13 expressly includes ordinances within the meaning of law for fundamental-rights review.

2. Conditions, advice and legislative limits

Two conditions govern promulgation. First, both Houses of Parliament must not be simultaneously in session. An ordinance is therefore possible when only one House is in session, since ordinary parliamentary legislation generally requires both Houses. Second, the President must be satisfied that circumstances exist which render immediate action necessary. Adjournment of a sitting is not the same as prorogation ending a session; a short adjournment does not automatically activate Article 123.

Under Article 74, the President exercises this power on ministerial advice. The President may require the Council of Ministers to reconsider its advice once, but must act according to the advice tendered after reconsideration. Ordinance-making is therefore not an independent presidential discretion. The Union government bears political responsibility for demonstrating urgency and subsequently placing the measure before Parliament.

Article 123(3) makes an ordinance void to the extent that it contains provisions Parliament would not be competent to enact. Legislative competence must be assessed through the constitutional distribution of powers, including Articles 245–246 and the Seventh Schedule. Ordinances are also subject to fundamental rights and other constitutional restrictions. They cannot amend the Constitution through the special procedure prescribed by Article 368.

Taxation is not categorically excluded: an ordinance can provide authority of law for a tax if constitutionally competent. Likewise, retrospective operation is possible, but cannot violate restrictions such as Article 20(1), which prohibits retrospective creation of criminal offences and retrospective enhancement of punishment. Equal legal force does not mean exemption from constitutional scrutiny.

3. Parliamentary control and duration

Every ordinance must be laid before both Houses of Parliament. It ceases to operate at the expiration of six weeks from Parliament’s reassembly unless legislation replaces it. When the Houses reassemble on different dates, the Constitution expressly uses the later date for calculating these six weeks. This rule is a frequent source of objective-examination traps.

An ordinance can end earlier in two ways. The President may withdraw it at any time, acting within the constitutional framework of ministerial advice. Alternatively, if both Houses pass resolutions disapproving it before the six-week period expires, it ceases to operate when the second resolution is passed. A disapproval resolution of only one House does not satisfy this particular constitutional requirement.

To continue the policy through ordinary legislation, the government generally introduces a replacement Bill. It must follow the applicable parliamentary procedure and receive presidential assent. Merely introducing or passing a Bill in one House does not indefinitely extend the ordinance. Replacement legislation may include provisions saving actions already taken under it.

Article 85 limits the interval between the last sitting of one parliamentary session and the first sitting of the next to six months. Combining this with Article 123 produces the familiar textbook description of approximately six months and six weeks as the maximum ordinary lifespan. However, the Constitution does not provide a fixed six-month validity from promulgation: the actual deadline depends on reassembly and may arise much earlier.

4. Judicial review and re-promulgation

The executive’s assessment of urgency is not wholly immune from judicial review. The Thirty-eighth Amendment Act, 1975 inserted provisions seeking to make the President’s and Governor’s satisfaction final and conclusive. The Forty-fourth Amendment Act, 1978 removed those provisions. Courts may examine constitutional abuse, mala fides or reliance on wholly irrelevant grounds, without treating themselves as the primary decision-maker on legislative policy.

In D. C. Wadhwa v. State of Bihar, 1987, the Supreme Court condemned the systematic re-promulgation of ordinances to keep them alive without legislative enactment. The case exposed how temporary executive legislation could become an alternative law-making system. The Court described such circumvention of the legislature as a subversion of democratic processes and a fraud on the Constitution.

In Krishna Kumar Singh v. State of Bihar, 2017, a seven-judge Bench reaffirmed that re-promulgation is a fraud on the Constitution and a subversion of democratic legislative processes. The majority treated laying an ordinance before the legislature as a mandatory constitutional obligation. The judgment also clarified that rights and liabilities created during an ordinance’s life do not automatically endure after it ceases to operate. Courts must consider factors such as public interest and constitutional necessity when assessing surviving consequences.

• Judicial review covers both substantive validity and constitutional misuse of the ordinance mechanism.
• Do not assume that every completed action is automatically undone on lapse, or that every consequence necessarily survives.
• Repeated promulgation cannot be used routinely to avoid legislative scrutiny.

5. Governor’s power and examination approach

Article 213 broadly mirrors Article 123. In a unicameral state, the Legislative Assembly must not be in session. In a bicameral state, an ordinance is possible unless both Houses are in session. The Governor ordinarily acts on the advice of the state Council of Ministers. The ordinance has the same force and effect as an Act of the state legislature assented to by the Governor.

Unlike Article 123, Article 213 expressly identifies circumstances requiring instructions from the President before promulgation. These include provisions that would require the President’s previous sanction if introduced as a Bill, a Bill the Governor would consider necessary to reserve, or provisions that would be invalid without reservation and presidential assent. Instructions are not required for every state ordinance.

For Prelims, separate promulgation conditions from cessation rules. For Mains, frame the issue as a balance between urgent governance and legislative accountability. Ordinances provide necessary flexibility, but frequent use can compress deliberation, weaken committee scrutiny and create legal uncertainty. Timely laying, reasoned explanations of urgency and prompt replacement legislation preserve their exceptional constitutional character.

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