The Ordinance-Making Power in India Explained

The ordinance-making power is the authority of the executive to issue laws that carry the same force as an Act of the legislature when the legislature is not in session. At the Union level it belongs to the President under Article 123, and in the states it belongs to the Governor under Article 213. The idea is simple: governance cannot always wait for the next session of Parliament or a state assembly, and a sudden situation may demand an immediate legal response.

Yet the power sits uneasily with the doctrine of separation of powers, since it lets the executive legislate. For this reason the Constitution surrounds it with conditions, and the Supreme Court has repeatedly cautioned against its misuse. This article explains how ordinances are issued, how long they last, what limits apply, and how landmark cases such as D.C. Wadhwa and Krishna Kumar Singh have shaped the law.

Quick Facts

What Is an Ordinance?

An ordinance is a temporary law made by the executive, not by the legislature. Under Article 123, the President may promulgate an ordinance if the President is satisfied that circumstances exist which render it necessary to take immediate action. Once promulgated, it has the same force and effect as an Act of Parliament, and it can deal with almost any subject that Parliament can legislate on.

The power is described in the Constitution as a legislative power of the President, which is why it is found in Chapter III of Part V, dealing with the legislative powers of the President, rather than in the chapter on the executive. In theory the President decides; in practice the President acts on the advice of the Union Council of Ministers, which means the ordinance is in reality the government’s decision.

The ordinance is only an interim measure. It must eventually be replaced by a regular Act of the legislature, or it will lapse. Think of it as a stopgap that lets the government act first and seek legislative approval afterwards.

Historical Background and Constitutional Origin

The concept did not originate with independent India. The Government of India Act, 1935 permitted the Governor-General to promulgate ordinances in situations of emergency, and similar powers existed for provincial governors. The framers of the Constitution chose to retain the idea, adapting it to a parliamentary democracy.

In the Constituent Assembly, some members objected to the provision, fearing that it could undermine legislative supremacy and be used to bypass the people’s representatives. Dr B.R. Ambedkar defended it by pointing out that the power was meant for genuine emergencies and was hedged with safeguards, including mandatory legislative review. He also noted that the power was under the control of the legislature, which could disapprove of any ordinance.

Position after the early amendments

• The 38th Amendment (1975) made the President’s satisfaction final and immune from judicial challenge.
• The 44th Amendment (1978) removed that bar, restoring the possibility of judicial scrutiny.
• In R.C. Cooper v. Union of India (1970), the Supreme Court, while examining the bank nationalisation measure that had begun as an ordinance in 1969, discussed the limits of the President’s satisfaction and showed that it could be tested in court.

Article 123: The President’s Ordinance-Making Power

Article 123(1) states that the President may promulgate an ordinance at any time except when both Houses of Parliament are in session. This is a frequently misunderstood point. If only one House is in session, the President still retains the power to issue an ordinance, because the legislature as a whole is not available to pass a law. Ordinances are therefore generally issued after Parliament has been prorogued, or between sessions.

Core conditions

• At least one House must not be in session.
• The President must be satisfied that circumstances make immediate action necessary.
• The subject must lie within Parliament’s legislative competence.
• The ordinance must be laid before both Houses when Parliament reassembles.

Subject matter

The scope of the power is co-extensive with that of Parliament. Consequently, the President can issue ordinances on subjects in the Union List and the Concurrent List, and, in special circumstances, on state subjects under constitutional provisions that allow Parliament to legislate on them. It cannot be used to amend the Constitution, as constitutional amendment is reserved to Parliament under Article 368.

The ordinance may also be given retrospective effect, may modify or repeal an existing Act of Parliament, subject to the usual constitutional requirements on financial matters.

Article 213: The Governor’s Ordinance-Making Power

Article 213 grants the Governor of a state a parallel power. The Governor may promulgate ordinances when the Legislative Assembly, or in a state with two Houses both Houses of the Legislature, is not in session, provided that the Governor is satisfied that circumstances make immediate action necessary. As with the President, the Governor acts on the aid and advice of the state Council of Ministers.

Special restrictions on the Governor

Unlike the President, the Governor faces additional conditions. The Governor cannot, without instructions from the President, promulgate an ordinance in three situations:

• if a Bill with the same provisions would have required the President’s previous sanction for introduction in the Legislature;
• if the Governor would have thought it necessary to reserve a Bill containing the same provisions for the President’s consideration; or
• if an Act of the state containing the same provisions would be invalid without receiving the President’s assent.

Scope

The state ordinance can deal only with subjects on which the state legislature is competent to make laws, which means the State List and the Concurrent List. If a state ordinance containing a provision repugnant to a Union law is to have effect, it needs the President’s instruction and eventual assent, in the same way a state Act would.

The Six-Week Rule and Lifespan of an Ordinance

An ordinance does not last indefinitely. Articles 123(2) and 213(2) state that it must be laid before the legislature when it reassembles, and that it ceases to operate at the expiration of six weeks from the reassembly of the legislature. It can cease earlier if both Houses of Parliament pass resolutions disapproving it. In the state context, a resolution of disapproval is passed by the Legislative Assembly and, where a Legislative Council exists, agreed to by the Council.

How the arithmetic works

The Constitution requires that Parliament should meet at intervals of no more than six months. An ordinance issued just after one session ends can therefore remain in force for up to six months before the next session begins, and then for six weeks more. This gives the maximum practical life of about six months and six weeks.

Ways in which an ordinance ends

• It is replaced by an Act passed by the legislature.
• It lapses after six weeks from reassembly of the legislature.
• Both Houses pass a resolution disapproving it.
• The President or Governor withdraws it at any time.

An important consequence is that actions already taken under an ordinance while it was in force are not wiped out merely because it lapsed, although later interpretation of the legal effects has been a subject of judicial examination.

Limits on the Power

Several limits, both textual and judicial, restrict the use of the power.

Textual limits

• The ordinance cannot go beyond the legislative competence of Parliament or the state legislature.
• It cannot amend the Constitution.
• It cannot override the fundamental rights contained in Part III; any provision violating them is void under Article 13, which applies to ordinances.
• It must be laid before the legislature, and is subject to disapproval.

Judicial limits

Courts have held that the satisfaction of the President or Governor, though subjective, is not wholly beyond scrutiny. In R.C. Cooper, and later in other cases, the Supreme Court indicated that an ordinance can be challenged where it is mala fide, based on irrelevant considerations, or where the claimed urgency is not genuine. The essential idea is that emergency law-making must remain an exception, and not become a convenient substitute for regular legislation.

D.C. Wadhwa v. State of Bihar (1987)

The earliest major judicial intervention against the misuse of the power came in D.C. Wadhwa v. State of Bihar. The facts were striking. The Bihar government had promulgated and then re-promulgated a large number of ordinances over a period of many years, often repeating the same text without ever placing the matter before the Assembly for enactment. Some ordinances were re-issued repeatedly for a long stretch of time.

What the Supreme Court held

• The power under Article 213 is meant only for an emergency and cannot be used as a substitute for the legislature’s law-making power.
• Repeated re-promulgation of ordinances, without seeking legislative approval, is a fraud on the Constitution and a subversion of the democratic legislative process.
• An ordinance that is re-promulgated in this way is liable to be struck down.

The Court nevertheless allowed limited protection to the actions already taken on the basis of the ordinances, so that people were not unfairly prejudiced. The judgment established the principle that the executive cannot bypass the legislature by continuously reissuing ordinances.

Krishna Kumar Singh v. State of Bihar (2017)

The issue returned decades later in Krishna Kumar Singh v. State of Bihar, decided by a seven-judge Constitution Bench in 2017. Again the dispute arose out of Bihar, this time concerning a series of ordinances relating to the takeover of Sanskrit schools, which had been repeatedly re-promulgated.

Principles reaffirmed

• Re-promulgation of ordinances is a constitutional fraud on the legislature, and the ordinance-making power is not an independent source of law-making that runs parallel to the legislature.
• The requirement of laying the ordinance before the legislature is mandatory, and it is a constitutional obligation of the executive. Failure to do so is a serious breach.
• The satisfaction of the President or Governor can be examined by courts for mala fides or for lack of relevant material.
• Where an ordinance has lapsed, its effects on rights and liabilities do not simply vanish, but the ordinance remains subject to the limits implied by the Constitution.

The decision, by affirming and strengthening Wadhwa, is the leading authority for the proposition that serial re-promulgation without legislative approval is impermissible.

Criticism, Examples and the Reform Debate

Critics argue that the ordinance route, if used routinely, weakens parliamentary scrutiny. A bill passes through readings, committee examination and debate; an ordinance bypasses all of these until later. When a government issues an ordinance on a contentious matter soon after a session ends, particularly one that was previously stalled in the legislature, it invites the charge that the legislative process is being sidestepped.

Examples that drew attention

• The 2013 ordinance relating to disqualification of convicted legislators, which was withdrawn after public criticism.
• The 2014-15 ordinance on land acquisition, which was promulgated and then re-promulgated before the government let it lapse.
• Criminal law and other social-policy ordinances that were later converted into Acts after Parliament met.

Arguments in support

Supporters point out that the power has been essential in matters such as natural calamities, urgent economic measures, and gaps arising between parliamentary sessions. They note that every ordinance remains answerable to the legislature, and that in most years a majority of ordinances are later converted into Acts.

Suggested reforms

Proposals include requiring a statement of reasons to be laid with each ordinance, banning re-promulgation by constitutional amendment, limiting ordinances on certain subjects, and strengthening committee scrutiny after the legislature reassembles.

Conclusion

The ordinance-making power in India is a narrow exception to the principle that laws are made by elected legislatures. Articles 123 and 213 allow the executive to respond quickly in a real emergency, but they bind that power with the six-week rule, the requirement of laying the ordinance before the legislature, and the possibility of disapproval. The Supreme Court, through D.C. Wadhwa and Krishna Kumar Singh, has made it clear that serial re-promulgation is unconstitutional. The power remains a useful tool when used with restraint, and a threat to legislative supremacy when it is not.

Frequently Asked Questions

Who can issue an ordinance in India?

The President can issue an ordinance under Article 123 for the Union, and the Governor can do so under Article 213 for a state. In both cases the power is exercised on the advice of the respective Council of Ministers.

When can an ordinance be promulgated?

The President can issue one when Parliament is not in session, meaning when at least one House is not sitting, and the Governor can do so when the state legislature is not in session. Both must be satisfied that circumstances require immediate action.

What is the six-week rule?

An ordinance must be laid before the legislature when it reassembles and ceases to operate six weeks after reassembly, unless it is replaced by an Act or approved earlier. It can also lapse sooner if both Houses pass resolutions disapproving it.

Can an ordinance be re-promulgated?

Repeated re-promulgation without placing the ordinance before the legislature is impermissible. In D.C. Wadhwa (1987) and Krishna Kumar Singh (2017), the Supreme Court called such practice a fraud on the Constitution.

Can an ordinance amend the Constitution?

No. An ordinance has the force of ordinary law only and cannot amend the Constitution, which can be done only through the procedure under Article 368. It also cannot violate fundamental rights.

Can courts review an ordinance?

Yes. An ordinance can be challenged for exceeding legislative competence, violating fundamental rights, or being mala fide or based on irrelevant considerations. The Supreme Court has held that the satisfaction of the President or Governor is not wholly immune from review.