Definition: The Ordinance Making Power is a legislative authority vested in the Executive—the President at the Union level and the Governor at the State level—to promulgate laws when Parliament or the State Legislature is not in session. These ordinances have the same force and effect as an Act of Parliament or the State Legislature, serving as an emergency mechanism to address urgent situations that cannot wait for the next legislative session.
Constitutional Basis and Scope
The Constitution of India provides for this extraordinary power under Article 123 for the President and Article 213 for the Governor. This power is not a parallel power of legislation but a temporary provision to handle exigencies. The President can issue an ordinance only when either of the two Houses of Parliament is not in session, or when both Houses are not in session.
The scope of the ordinance is co-extensive with the legislative powers of the Parliament or State Legislature. This means an ordinance can only be issued on subjects where the respective legislature has the power to make laws. Furthermore, it is subject to the same constitutional limitations as any ordinary law, including the Fundamental Rights guaranteed by the Constitution.
“The ordinance-making power is an emergency provision to be used only when circumstances exist which render it necessary for the President to take immediate action.”
Limitations and Judicial Oversight
While the executive is granted this power, it is not absolute. The judiciary, particularly the Supreme Court, has maintained that the satisfaction of the President or Governor in issuing an ordinance is justiciable. This means the court can examine whether the ordinance was issued in good faith or if it was a colorable exercise of power to bypass the legislature.
The landmark DC Wadhwa case (1987) established that the practice of re-promulgating ordinances repeatedly without placing them before the legislature is a fraud on the Constitution. The court emphasized that the executive cannot usurp the legislative function by indefinitely extending the life of an ordinance.
- Temporary Nature: An ordinance must be placed before the legislature within 6 weeks of its reassembly.
- Cessation: If the legislature disapproves the ordinance, it ceases to operate immediately.
- Withdrawal: The President or Governor can withdraw an ordinance at any time.
Comparison: President vs. Governor
Although the powers appear similar, there are nuances in their application. A Governor cannot issue an ordinance without the prior instructions of the President if the ordinance contains provisions that would require the President’s sanction for a bill, or if the Governor would have deemed it necessary to reserve a bill for the President’s consideration.
The legislative competence for the President is restricted to the Union List and Concurrent List, whereas the Governor is restricted to the State List and Concurrent List. However, if a state ordinance conflicts with a central law on a concurrent subject, the President’s assent is required for the state ordinance to prevail.
Important Facts: Comparison Table
| Feature | President (Art. 123) | Governor (Art. 213) |
|---|---|---|
| Legislative Scope | Union & Concurrent List | State & Concurrent List |
| Timing | When Parliament is not in session | When State Legislature is not in session |
| Presidential Instruction | Not required | Required in specific cases |
| Approval Period | 6 weeks from reassembly | 6 weeks from reassembly |
Key Points to Remember
- Article 123: Power of the President to promulgate Ordinances during recess of Parliament.
- Article 213: Power of the Governor to promulgate Ordinances during recess of State Legislature.
- Maximum Life: 6 months and 6 weeks (maximum gap between sessions is 6 months + 6 weeks for legislative approval).
- Justiciability: The Supreme Court in the Cooper Case (1970) held that the President’s satisfaction can be challenged on the ground of ‘malafide’ intent.
- Non-Retroactive Constraints: Ordinances cannot amend the Constitution.
- Legislative Status: An ordinance is not a ‘delegated legislation’ but a legislative act of the executive.
Previous Year Question Hints
- “Examine the constitutional validity of the re-promulgation of ordinances. How has the Supreme Court interpreted the limits of this power?” (Relevant for UPSC Mains)
- “Which of the following is true regarding the Ordinance making power? (a) It is a discretionary power of the President. (b) It can be used to amend the Constitution. (c) It has the same force as an Act of Parliament. (d) It is not subject to judicial review.” (Relevant for Preliminary Exams)
Quick Revision Summary
- Ordinances are temporary laws issued when the legislature is not in session.
- President (Art 123) and Governor (Art 213) derive this power from the Constitution.
- The ordinance must be approved by the legislature within 6 weeks of reassembly.
- The maximum possible duration of an ordinance is 6 months and 6 weeks.
- The power is subject to judicial review to prevent executive overreach.
- Ordinances cannot alter the basic structure or amend the Constitution.
- The Governor requires Presidential instructions for specific types of ordinances.
- The DC Wadhwa case remains the gold standard for judicial intervention regarding re-promulgation.
