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President's Ordinance-Making Power

UPSC Civil Services• POLITY• Union Executive• President's Ordinance-Making Power
Explains the President's Ordinance-making power under Article 123, including conditions for promulgation, the meaning of immediate action, the role of the Council of Ministers, the legal force and temporary nature of Ordinances, the six-week rule, parliamentary approval, withdrawal, re-promulgation, judicial review, constitutional limitations, comparison with the Governor's Article 213 power, important Supreme Court judgments such as D.C. Wadhwa and Krishna Kumar Singh, UPSC Prelims facts and traps, and a Mains answer framework.

President's Ordinance-Making Power

Introduction

The President's Ordinance-making power is provided under:

Article 123

It enables the President to promulgate an:

Ordinance

when Parliament is not in session and immediate legislative action is considered necessary.

An Ordinance has the:

Same Force and Effect as an Act of Parliament

but it is:

Temporary in Nature

and subject to parliamentary approval within the constitutionally prescribed period.


1. Constitutional Basis

The President's Ordinance-making power is provided under:

Article 123

It forms part of the:

Legislative Powers of the President


2. What Is an Ordinance?

An Ordinance is a:

Temporary Law Promulgated by the President

when Parliament is not in session.

It is issued on the:

Aid and Advice of the Council of Ministers


3. Why Does the Ordinance Power Exist?

Parliament may not always be in session when an urgent legislative situation arises.

The Ordinance mechanism allows the government to:

Take Immediate Legislative Action

without waiting for Parliament to reconvene.


4. Conditions for Promulgating an Ordinance

The President can promulgate an Ordinance only when:

Condition 1

Both Houses of Parliament are not in session

The constitutional requirement is that circumstances exist when:

Both Houses of Parliament are not simultaneously in session.

Therefore, if one House is in session and the other is not, the President can still promulgate an Ordinance.


Condition 2

The President must be satisfied that:

Circumstances Exist Which Render It Necessary for Him to Take Immediate Action


5. Important Prelims Point

Do not remember the condition as simply:

"Parliament must not be in session."

The precise rule is:

Both Houses must not be in session simultaneously.


6. President's Satisfaction

Article 123 states that the President must be satisfied that circumstances exist requiring:

Immediate Action

However, in India's parliamentary system, this satisfaction operates on:

Aid and Advice of the Council of Ministers


7. Is President's Satisfaction Personal?

Generally:

No.

The President does not independently decide government policy through Ordinances.

The Ordinance power operates through:

Council of Ministers

and the President acts as the constitutional authority for promulgation.


8. Ordinance and Council of Ministers

The Ordinance-making power demonstrates the parliamentary relationship between:

President

and:

Council of Ministers

The President formally promulgates the Ordinance, while the elected government determines the policy behind it.


9. Ordinance Has Force of Law

An Ordinance has:

The Same Force and Effect as an Act of Parliament

while it remains constitutionally valid.

Therefore, an Ordinance is not merely:

An Executive Order

It has:

Legislative Force


10. Ordinance Is Not a Constitutional Amendment

An Ordinance cannot be used to:

Amend the Constitution

under Article 368.

Constitutional amendments require the:

Article 368 Procedure


11. Ordinance and Fundamental Rights

An Ordinance is subject to:

Fundamental Rights

and:

Judicial Review

It cannot validly violate constitutional limitations merely because it is promulgated as an Ordinance.


12. Ordinance and Judicial Review

The Ordinance-making power is not beyond judicial scrutiny.

Courts can examine:

  • Constitutional validity
  • Legislative competence
  • Fundamental Rights
  • Constitutional limitations
  • Re-promulgation in appropriate cases

13. Duration of an Ordinance

An Ordinance must be placed before:

Both Houses of Parliament

when they reassemble.


14. Six-Week Rule

An Ordinance ceases to operate:

Six Weeks After the Reassembly of Parliament

unless it is earlier:

Disapproved by Parliament

or otherwise ceases according to the Constitution.


15. Which Reassembly Matters?

The six-week period is counted from:

Reassembly of Parliament

after the Ordinance was promulgated.

The constitutional calculation is linked to the reassembly of Parliament as provided in Article 123.


16. If Both Houses Reassemble on Different Dates

The six-week period is calculated from:

The Later Date

when the two Houses reassemble.

This is an important UPSC Prelims point.


17. Parliamentary Approval

An Ordinance must be converted into parliamentary legislation if the government wants its provisions to continue permanently.

Therefore, the government should introduce a:

Bill

to replace the Ordinance.


18. If Parliament Approves the Bill

If Parliament passes the Bill and it receives Presidential assent:

The temporary Ordinance-based law is replaced by:

An Act of Parliament


19. If Parliament Does Not Approve

If Parliament does not pass the necessary legislation within the constitutional period:

The Ordinance Ceases to Operate


20. If Parliament Disapproves

Either House can disapprove the Ordinance.

If Parliament disapproves the Ordinance according to the constitutional procedure:

It Ceases to Operate


21. Ordinance Can Cease Earlier

An Ordinance may cease before six weeks if:

  • Parliament disapproves it
  • The President withdraws it
  • It is replaced by legislation
  • It otherwise becomes constitutionally ineffective

22. President Can Withdraw an Ordinance

Under:

Article 123

the President may withdraw an Ordinance.

In practice, this power operates within the:

Parliamentary Executive

and generally follows ministerial advice.


23. Ordinance and Parliament

The Ordinance mechanism is:

Temporary Substitute for Parliamentary Legislation

during periods when Parliament is not in session.

It is not intended to permanently replace:

Parliamentary Law-Making


24. Ordinance and Parliamentary Supremacy

India follows:

Constitutional Supremacy

Therefore, Ordinance-making power is subject to:

  • Constitution
  • Parliament
  • Judiciary
  • Fundamental Rights

25. Ordinance vs Act of Parliament

OrdinanceAct of Parliament
Promulgated by PresidentPassed by Parliament
Article 123Parliamentary legislative procedure
TemporaryGenerally permanent
Issued when Parliament is not simultaneously in sessionPassed through parliamentary procedure
Requires parliamentary considerationAlready approved by Parliament
Same force as an Act while validLaw enacted by Parliament

26. Ordinance vs Executive Order

An Ordinance:

Has Legislative Force

An ordinary executive order:

Exercises Administrative / Executive Authority

Therefore:

Ordinance ≠ Ordinary Executive Order


27. Ordinance vs Delegated Legislation

Ordinance

Promulgated by:

President

under:

Article 123

Delegated Legislation

Made by:

Executive Authority

under powers delegated by:

Legislation


28. Ordinance-Making Power of Governor

The Governor also possesses an Ordinance-making power under:

Article 213

The President's power is under:

Article 123


29. President vs Governor — Ordinance

PresidentGovernor
Article 123Article 213
Union levelState level
When Parliament is not simultaneously in sessionWhen State Legislature is not in session
Same general temporary legislative characterSame general temporary legislative character

30. Can Ordinance Be Promulgated During Lok Sabha Session?

If:

Rajya Sabha is not in session

but:

Lok Sabha is in session

the President can promulgate an Ordinance because both Houses are not simultaneously in session.

This is a major UPSC Prelims trap.


31. Can Ordinance Be Promulgated During Rajya Sabha Session?

If:

Lok Sabha is not in session

but:

Rajya Sabha is in session

the President can similarly promulgate an Ordinance because both Houses are not simultaneously in session.


32. When Ordinance Cannot Be Promulgated

If:

Both Lok Sabha and Rajya Sabha are in session

the President cannot promulgate an Ordinance under Article 123.


33. Ordinance and Money Matters

An Ordinance can deal with matters that Parliament can legislate upon, subject to constitutional limitations.

Therefore, the President's Ordinance power is not confined to:

Ordinary Policy Matters


34. Ordinance and Taxation

An Ordinance can be used in matters involving:

Taxation

provided the constitutional requirements governing the subject are satisfied.

However, the Ordinance remains temporary unless converted into legislation.


35. Ordinance and Financial Matters

An Ordinance may deal with financial matters within the legislative competence of Parliament.

However, constitutional requirements relating to:

  • Money Bills
  • Financial Bills
  • Public expenditure

must still be respected.


36. Ordinance Cannot Do What Parliament Cannot Do

The President cannot use an Ordinance to achieve something that:

Parliament itself lacks constitutional power to do.

Therefore:

Legislative Competence

is a fundamental limitation.


37. Ordinance and Federal Distribution of Powers

The Union cannot use an Ordinance to legislate on a subject beyond its:

Constitutional Legislative Competence

subject to the Constitution's provisions concerning Union and State legislative powers.


38. Ordinance and Fundamental Rights

An Ordinance cannot validly:

Override Fundamental Rights

in a manner prohibited by the Constitution.

It is subject to:

Part III

and constitutional judicial review.


39. Ordinance and Constitutional Rights

An Ordinance must comply with:

  • Fundamental Rights
  • Equality
  • Freedom protections
  • Due constitutional procedure
  • Judicial review

40. Ordinance and Emergency

An Ordinance is not the same as:

Emergency Power

An Ordinance can be issued under Article 123 even when:

No Emergency Exists

provided the constitutional conditions are satisfied.


41. Ordinance and President's Veto

Do not confuse:

Ordinance-Making Power

with:

Veto Power

Ordinance

Creates temporary law when Parliament is not simultaneously in session.

Veto

Concerns assent to Bills passed by Parliament.


42. Ordinance and Pardoning Power

Do not confuse Article 123 with:

Article 72

Article 123:

Ordinances

Article 72:

Pardoning Power


43. Ordinance and Parliament's Legislative Power

Parliament remains the:

Primary Legislative Institution

The Ordinance power is an exceptional mechanism for urgent circumstances.


44. Purpose of the Ordinance Power

The power exists to prevent:

Legislative Vacuum

during periods when Parliament is unavailable to enact legislation immediately.


45. Constitutional Safeguard

The six-week rule ensures that the executive cannot use Ordinances indefinitely without:

Parliamentary Consideration


46. Ordinance and Democratic Accountability

Because an Ordinance bypasses the normal parliamentary process temporarily, parliamentary scrutiny is essential.

The government must ultimately face:

Parliamentary Accountability


47. Re-Promulgation of Ordinances

One of the most important constitutional issues is:

Repeated Re-Promulgation

of Ordinances.

Re-promulgation means repeatedly issuing the same or substantially similar Ordinance without obtaining parliamentary approval.


48. Why Re-Promulgation Is Problematic

Repeated re-promulgation can:

  • Bypass Parliament
  • Undermine legislative scrutiny
  • Distort parliamentary democracy
  • Convert temporary law-making into executive legislation

49. D.C. Wadhwa Case

In:

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

the Supreme Court strongly criticised the practice of repeatedly re-promulgating Ordinances without placing the matter before the legislature.

Although the case concerned the Governor's Ordinance power under Article 213, its principle is highly relevant to the Ordinance mechanism generally.


50. Krishna Kumar Singh Case

In:

Krishna Kumar Singh v. State of Bihar (2017)

the Supreme Court delivered an important judgment concerning:

Re-Promulgation of Ordinances

The Court emphasised that repeated re-promulgation cannot become a substitute for legislative law-making.


51. Re-Promulgation — Constitutional Principle

The executive cannot use Ordinance power to:

Permanently Bypass the Legislature


52. Ordinance and Judicial Review

The Supreme Court has recognised that Ordinance-making is subject to:

Judicial Review

The executive's satisfaction is not treated as completely immune from constitutional scrutiny.


53. Immediate Necessity

Article 123 requires circumstances making it:

Necessary to Take Immediate Action

Therefore, the Ordinance mechanism is constitutionally linked to:

Urgency

rather than routine legislation.


54. Ordinance for Political Convenience

Using Ordinances merely because:

Parliamentary Debate Is Inconvenient

is inconsistent with the constitutional purpose of the power.

The power is intended for:

Urgent Legislative Situations


55. Ordinance and Parliamentary Recess

Parliamentary recess alone does not automatically justify every Ordinance.

There must be:

Circumstances Requiring Immediate Action


56. Ordinance and Political Accountability

The government remains politically accountable for an Ordinance.

Opposition parties can:

  • Question the government
  • Debate the legislation
  • Challenge its policy
  • Seek parliamentary disapproval
  • Challenge its constitutional validity

57. Can Ordinance Amend an Existing Law?

Yes.

An Ordinance can amend or modify an existing parliamentary law, provided:

  • Parliament has legislative competence
  • Constitutional limitations are satisfied
  • The amendment remains within the scope of Article 123

58. Can Ordinance Repeal an Existing Law?

Yes, an Ordinance may repeal or modify existing legislation where Parliament itself would have competence to do so.

However, the change remains subject to:

Temporary Ordinance Validity

unless converted into legislation.


59. Can Ordinance Amend the Constitution?

No.

The Ordinance power cannot be used to make a:

Constitutional Amendment under Article 368


60. Can Ordinance Override a Supreme Court Judgment?

An Ordinance cannot simply:

Nullify a Judicial Judgment

by declaring a judicial decision invalid.

The legislature may, within constitutional limits, change the legal basis underlying a judgment, but it cannot directly exercise judicial power.


61. Ordinance and Separation of Powers

The Ordinance mechanism represents a limited overlap between:

Executive

and:

Legislative Functions

But this overlap is constitutionally authorised.


62. Why It Does Not Destroy Parliamentary Government

The Constitution contains safeguards:

  • Temporary nature
  • Parliamentary approval requirement
  • Six-week rule
  • Judicial review
  • Legislative competence
  • Constitutional rights
  • Possibility of withdrawal

63. President's Ordinance Power — Practical Reality

Although Article 123 uses the expression:

President's Power

the practical political decision is taken by:

Council of Ministers

because India follows a parliamentary system.


64. President's Satisfaction — Important Nuance

The phrase:

President is satisfied

does not mean that the President independently formulates legislative policy.

The President acts within:

Article 74

and the parliamentary executive structure.


65. Ordinance and Cabinet

The Cabinet generally determines:

  • Whether urgent legislation is required
  • What the Ordinance should contain
  • When it should be promulgated
  • Whether it should later be replaced by a Bill

The President formally promulgates it.


66. Ordinance and Parliamentary Approval — Flow

URGENT SITUATION
       ↓
PARLIAMENT NOT SIMULTANEOUSLY IN SESSION
       ↓
COUNCIL OF MINISTERS ADVISES
       ↓
PRESIDENT PROMULGATES ORDINANCE
       ↓
ORDINANCE HAS FORCE OF LAW
       ↓
PARLIAMENT REASSEMBLES
       ↓
ORDINANCE PLACED BEFORE BOTH HOUSES
       ↓
WITHIN SIX WEEKS
       ↓
PARLIAMENTARY ACTION
       ↓
ACT / DISAPPROVAL / CESSATION
67. Six-Week Calculation

Suppose:

Lok Sabha reassembles on 1 July

and:

Rajya Sabha reassembles on 5 July

The six-week period is counted from:

5 July

the later reassembly date.

68. Ordinance and Dissolution of Lok Sabha

An Ordinance may operate during a period when:

Lok Sabha is dissolved

provided the constitutional conditions concerning Parliament being not simultaneously in session are satisfied.

However, the constitutional procedure for parliamentary consideration must be followed when Parliament is reconstituted and reassembles.

69. Ordinance and Rajya Sabha

Rajya Sabha has an important role because the Ordinance must ultimately face:

Both Houses of Parliament

for continued legislative validity.

70. UPSC PRELIMS FACTS
Fact 1

Ordinance power of President:

Article 123

Fact 2

Ordinance is promulgated when:

Both Houses are not simultaneously in session

Fact 3

President's satisfaction:

Immediate Action Necessary

Fact 4

Ordinance has:

Same Force and Effect as Act of Parliament

Fact 5

Ordinance must be laid before:

Both Houses

Fact 6

Ordinance ceases:

Six Weeks After Reassembly

unless earlier ceased.

Fact 7

If Houses reassemble on different dates:

Later Date is Relevant

Fact 8

President can:

Withdraw Ordinance

Fact 9

Ordinance is subject to:

Judicial Review

Fact 10

Ordinance cannot:

Amend Constitution under Article 368

Fact 11

Re-promulgation to bypass legislature:

Constitutionally Problematic

Fact 12

Governor's equivalent power:

Article 213

UPSC PRELIMS TRAPS
Trap 1

President can promulgate an Ordinance only when both Houses are completely dissolved.

False.

Parliament merely needs to be:

Not Simultaneously in Session

Trap 2

If Lok Sabha is in session and Rajya Sabha is not, Ordinance cannot be issued.

False.

It can be issued because both Houses are not simultaneously in session.

Trap 3

Ordinance automatically becomes a permanent law.

False.

It is temporary unless replaced by legislation.

Trap 4

Ordinance must be approved within six weeks of its promulgation.

False.

The six-week period is calculated from:

Reassembly of Parliament

Trap 5

Six weeks is counted from the date of reassembly of the first House.

False.

Where the Houses reassemble on different dates, the relevant date is:

Later Reassembly

Trap 6

Ordinance has less legal force than an Act.

False.

While valid, it has:

Same Force and Effect as an Act of Parliament

Trap 7

President can promulgate Ordinance independently.

False in the normal parliamentary framework.

The President acts on:

Aid and Advice of Council of Ministers

Trap 8

Ordinance can amend the Constitution.

False.

Trap 9

Ordinance is immune from judicial review.

False.

Trap 10

Ordinances can be repeatedly re-promulgated indefinitely.

False.

Repeated re-promulgation to bypass Parliament has been strongly disapproved by the Supreme Court.

IMPORTANT SUPREME COURT JUDGMENTS
D.C. Wadhwa v. State of Bihar (1987)
Principle

Repeated re-promulgation of Ordinances to avoid legislative scrutiny is:

Constitutionally Improper

UPSC Relevance

Ordinance + Parliamentary Democracy + Legislative Bypass

Krishna Kumar Singh v. State of Bihar (2017)
Principle

Re-promulgation cannot become a:

Parallel Source of Law-Making

The Ordinance power is temporary and subject to legislative control.

UPSC Relevance

Ordinance + Judicial Review + Legislative Supremacy

ORDINANCE — PRESIDENT vs GOVERNOR
President	Governor
Article 123	Article 213
Union	State
Parliament not simultaneously in session	State Legislature not in session
President formally promulgates	Governor formally promulgates
Council of Ministers advises	State Council of Ministers advises
ORDINANCE vs VETO
Ordinance	Veto
Article 123	Article 111
Temporary law	Assent to Bill
Used when Parliament not simultaneously in session	Used after Bill is passed
Creates temporary legal effect	Determines whether Bill receives assent
Executive legislative power	Legislative assent power
ORDINANCE vs EMERGENCY
Ordinance	Emergency
Article 123	Articles 352, 356, 360
Temporary legislation	Exceptional constitutional regime
Parliament not simultaneously in session	Constitutional emergency conditions
Does not require Emergency	May operate during normal times
MAINS RELEVANCE
71. Need for Ordinance Power

It provides:

Speed + Continuity + Urgent Legislative Response

72. Risk of Executive Overreach

Excessive Ordinance use can:

Bypass Parliament
Reduce legislative scrutiny
Weaken deliberative democracy
Increase executive dominance
73. Constitutional Balance

The power must balance:

Urgent Governance

with:

Parliamentary Accountability

74. Re-Promulgation Problem

Repeated Ordinances can transform an:

Exceptional Power

into:

Routine Executive Law-Making

This undermines parliamentary democracy.

75. Judicial Role

Judicial review ensures that:

Ordinance Power Is Not Unlimited

MAINS ANSWER FRAMEWORK

For:

"Discuss the constitutional significance and limitations of the President's Ordinance-making power."

Introduction

Article 123 empowers the President to promulgate Ordinances when Parliament is not simultaneously in session and circumstances require immediate legislative action. The power ensures continuity of governance but is subject to parliamentary and judicial safeguards.

Body
Need
Urgent legislation
Legislative vacuum
Administrative continuity
Safeguards
Temporary nature
Six-week rule
Parliamentary scrutiny
Judicial review
Constitutional limitations
Concerns
Executive bypass of Parliament
Re-promulgation
Reduced deliberation
Political misuse
Judgments
D.C. Wadhwa
Krishna Kumar Singh
Conclusion

The Ordinance mechanism is constitutionally necessary for exceptional situations, but its legitimacy depends on treating it as an emergency legislative device rather than a substitute for Parliament.

READY-MADE MAINS INTRODUCTION

"Article 123 empowers the President to promulgate Ordinances when Parliament is not simultaneously in session and immediate legislative action is necessary. Although this power ensures responsiveness during legislative recesses, its temporary nature and requirement of parliamentary scrutiny are essential to preserving India's parliamentary democracy."

READY-MADE MAINS CONCLUSION

"The Ordinance power is therefore a constitutional safety valve, not a parallel law-making system. Its restrained use, timely legislative replacement and avoidance of repeated re-promulgation are essential to maintaining the balance between executive efficiency and parliamentary accountability."

ONE-MINUTE REVISION
ARTICLE 123
     ↓
PARLIAMENT NOT
SIMULTANEOUSLY IN SESSION
     ↓
IMMEDIATE ACTION NECESSARY
     ↓
COUNCIL OF MINISTERS ADVISES
     ↓
PRESIDENT PROMULGATES
     ↓
ORDINANCE
     ↓
FORCE OF LAW
     ↓
PARLIAMENT REASSEMBLES
     ↓
BOTH HOUSES CONSIDER
     ↓
SIX WEEKS
     ↓
CONTINUES ONLY THROUGH
PROPER LEGISLATIVE PROCESS
FINAL MASTER FORMULA

Ordinance Power

=

Article 123

Parliament Not Simultaneously in Session

Immediate Action Necessary

Council of Ministers' Advice

↓

President Promulgates

↓

Same Force as Act

↓

Temporary

↓

Parliamentary Scrutiny

↓

Six-Week Limit

↓

Judicial Review

↓

No Constitutional Amendment

↓

No Permanent Bypass of Parliament