Ordinance-making power is the:
Constitutional power of the President and Governors to promulgate temporary laws when the Legislature is not in session and immediate action is considered necessary.
Article 123 → President.
Article 213 → Governor.
The power is designed to deal with:
Situations requiring immediate legislative action
when:
Parliament or State Legislature is not in session.
An Ordinance:
Has the same force and effect as an Act of Parliament or State Legislature
while it remains constitutionally valid.
An Ordinance is:
Temporary.
It must ultimately be:
Approved through the legislative process,
or:
Cease to operate according to the Constitution.
The President may promulgate an Ordinance when:
Both Houses of Parliament are not in session.
and:
Circumstances exist which render it necessary for the President to take immediate action.
The President cannot ordinarily promulgate an Ordinance when:
Both Houses of Parliament are sitting.
The Constitution specifically refers to:
Both Houses not being in session.
Therefore:
An Ordinance can be issued if one House is not in session and the constitutional conditions are otherwise satisfied.
Every Ordinance must be laid before:
Both Houses of Parliament.
An Ordinance:
Ceases to operate six weeks after the reassembly of Parliament
unless:
It is replaced/approved through the legislative process.
The period is calculated from:
The date on which Parliament reassembles.
If:
Both Houses pass resolutions disapproving the Ordinance,
it can cease earlier in accordance with the constitutional framework.
Passed through normal legislative procedure.
Promulgated by President/Governor when Legislature is not in session.
An Ordinance:
Has legislative force.
An ordinary executive order:
Does not possess the same status as legislation.
The President generally acts:
On the aid and advice of the Council of Ministers.
Article 74 provides for:
Council of Ministers to aid and advise the President.
The existence and exercise of ordinance-making power:
Are subject to constitutional limitations and judicial review.
No.
The President normally:
Acts on ministerial advice.
The Governor may promulgate an Ordinance when:
The State Legislature is not in session
and:
Immediate action is necessary.
The Governor generally exercises this power:
On the aid and advice of the State Council of Ministers,
subject to the constitutional framework.
In certain situations, the Governor cannot promulgate an Ordinance without:
Instructions from the President.
This is particularly relevant where a Bill with the same provisions would require:
Previous sanction of the President,
or:
Reservation for the President,
or:
Presidential assent under the Constitution.
Article 123.
Parliament not in session.
Article 213.
State Legislature not in session.
An Ordinance:
Is subject to Fundamental Rights.
It cannot:
Validly violate constitutional limitations simply because it is an Ordinance.
The authority promulgating the Ordinance must operate within:
Constitutional legislative competence.
Courts may examine:
India follows:
Constitutional supremacy,
not:
Unlimited executive law-making.
Ordinance power creates an overlap between:
Executive
and:
Legislative functions.
Because:
The Constitution itself expressly authorises ordinance-making.
It is therefore:
Constitutional delegated/exceptional legislative authority.
The Ordinance power is intended as:
An emergency or urgent legislative mechanism.
It is not intended to become:
A substitute for regular legislation.
The constitutional expression is:
"Promulgate an Ordinance."
The Ordinance operates:
Like an Act,
subject to:
Constitutional and temporal limitations.
An Ordinance ceases to operate:
Six weeks after Parliament/State Legislature reassembles,
unless the required legislative process preserves the law.
The six-week period begins from:
Reassembly of Parliament.
For the President's Ordinance:
Both Houses must have reassembled as constitutionally relevant.
The legislature can:
Replace the Ordinance with an Act.
It can also:
Disapprove it.
If an Ordinance changes legal rights or obligations:
Constitutional and legal consequences must be examined.
An Ordinance cannot:
Automatically protect unconstitutional conduct.
Re-promulgation means:
Issuing a fresh Ordinance after the earlier Ordinance is about to lapse,
instead of placing the matter before the Legislature for regular legislation.
Repeated re-promulgation can:
Bypass legislative scrutiny.
This is a landmark case concerning:
Re-promulgation of Ordinances.
The Bihar Government had:
Repeatedly re-promulgated Ordinances
without placing the legislative matters before the legislature for proper legislative consideration.
The Court criticised:
Repeated re-promulgation
as a:
Fraud on the Constitution
when used to circumvent legislative scrutiny.
Ordinance power:
Cannot be used to bypass the Legislature indefinitely.
The Court did not say:
Every re-promulgation is automatically invalid in every circumstance.
The constitutional problem arises when:
Re-promulgation becomes a deliberate substitute for legislative law-making.
A Constitution Bench further clarified the law on:
Ordinance-making and re-promulgation.
The power to promulgate an Ordinance is:
Not an unlimited power.
The Ordinance-making authority must act:
Within the constitutional framework.
The Court emphasised:
Legislative supremacy within the parliamentary constitutional framework.
An Ordinance should ultimately be:
Placed before the Legislature.
The Court strongly disapproved of:
Repeated re-promulgation
as a method of:
Avoiding legislative scrutiny.
The temporary nature of an Ordinance means:
It is constitutionally dependent on subsequent legislative action.
A major issue is:
What happens to rights, liabilities and actions taken under an Ordinance after it ceases to operate?
The Court examined:
The effect of the cessation of Ordinances
and the extent to which:
Rights and liabilities created during the Ordinance period
can survive.
There is no simple rule that:
Everything done under a lapsed Ordinance automatically disappears.
The legal consequences depend on:
The nature of the Ordinance and the rights/liabilities involved.
A parliamentary democracy requires:
Executive accountability to the Legislature.
Frequent ordinance-making can:
The power can be justified where:
Immediate action is genuinely necessary
and:
The Legislature is unavailable.
A constitutionally sound use involves:
Genuine urgency
Temporary legislative necessity
Prompt legislative consideration.
Problematic use may involve:
Repeated promulgation
or:
Avoidance of legislative scrutiny.
Ordinances cannot:
Override specific constitutional requirements relating to financial legislation.
The normal constitutional rules concerning:
Money Bills and appropriation
continue to apply.
An Ordinance:
Cannot amend the Constitution.
Constitutional amendment requires:
Article 368 procedure.
❌ President can amend the Constitution through Ordinance.
✅ Ordinance is ordinary law-making power within constitutional limits.
An Ordinance can:
Create, modify or repeal ordinary legal rules,
but cannot:
Validly destroy Fundamental Rights.
Courts can:
Examine constitutional validity.
Therefore:
Ordinance ≠ judicially immune executive action.
The Governor's power is subject to additional constitutional limitations in certain matters.
Where the proposed law would require:
Presidential sanction/reservation,
the Governor may need:
Instructions from the President.
A State Ordinance may become ineffective if:
The State Legislature does not approve the law within the constitutional period.
Even where a State has:
Legislative Council,
the constitutional reassembly and legislative process must be considered in accordance with the State's bicameral structure.
The purpose of the condition:
Legislature not in session
is to ensure that executive law-making does not become:
A substitute for normal parliamentary legislation.
Historically, the expression:
"satisfied that circumstances exist"
raised questions about:
Judicial review of subjective satisfaction.
Presidential/Gubernatorial ordinance-making:
Is not completely immune from judicial review.
If the power is used:
Mala fide
or:
For an unconstitutional purpose,
courts may intervene.
The exercise of ordinance power must be:
Constitutionally justified.
Courts can examine:
Whether the power was exercised for a legitimate constitutional purpose.
An Ordinance should not be used:
Merely because ordinary legislation is politically inconvenient.
Regular legislation provides:
Usually lacks the:
Same degree of legislative deliberation before promulgation.
Ordinance power should remain:
Exceptional and temporary.
Important distinction:
Direct law-making by President/Governor under constitutional authority.
Rules/regulations made by Executive under authority delegated by a statute.
An Ordinance:
Does not require a National Emergency.
It may be promulgated under:
Article 123
when constitutional conditions are satisfied.
❌ Ordinance-making power is available only during Emergency.
✅ It is an ordinary constitutional power subject to Article 123/213 conditions.
Article 356:
President's Rule in a State.
Ordinance:
Temporary law-making power.
They are:
Completely different constitutional mechanisms.
→ Presidential action and constitutional review in broader contexts.
→ Ordinance-related constitutional issues and preventive detention context.
→ Re-promulgation cannot become a legislative substitute.
→ Stronger constitutional control over ordinance power and its consequences.
The Supreme Court dealt with:
Ordinance-making in the context of preventive detention legislation.
It reinforced the principle that:
Ordinance power remains subject to constitutional review.
Re-promulgation cannot be a routine legislative practice.
Ordinance power is temporary, exceptional and constitutionally controlled.
Proper ordinance-making requires:
Respect for legislative institutions.
The Executive should not:
Govern indefinitely through Ordinances.
In a parliamentary system:
The Legislature is the normal forum for law-making.
The Council of Ministers remains:
Politically accountable to Parliament/State Legislature.
The ordinance mechanism is an example of:
Constitutionally permitted overlap.
But repeated use can:
Distort institutional balance.
Rule of law requires:
Executive power to remain legally bounded.
The Constitution remains:
Superior to the Ordinance.
The same standards of:
Constitutional validity
apply to Ordinances as to Acts.
A court can examine:
Whether an Ordinance violates the Constitution.
An Ordinance may:
Operate retrospectively,
where legally and constitutionally permissible.
This does not mean:
Every retrospective Ordinance is valid.
Tax-related Ordinances may be possible where:
Constitutional and statutory conditions
are satisfied.
Ordinance power:
Cannot eliminate constitutional financial procedures.
An Ordinance remains subject to:
The constitutional emergency framework.
It does not automatically acquire:
Immunity from Fundamental Rights scrutiny.
A Governor's Ordinance:
Has the same force and effect as an Act of the State Legislature,
subject to:
Article 213 limitations.
| Feature | President | Governor |
|---|---|---|
| Article | 123 | 213 |
| Legislature | Parliament | State Legislature |
| Condition | Both Houses not in session | State Legislature not in session |
| Aid/advice | Union Council of Ministers | State Council of Ministers |
| Duration | 6 weeks after reassembly | 6 weeks after reassembly |
| Judicial review | Yes | Yes |
→ Allows urgent action.
→ Risks bypassing legislative scrutiny.
→ Provides flexibility.
→ Must retain ultimate control over law-making.
→ Prevents constitutional misuse.
Frequent use can:
Concentrate law-making power in the Executive.
Can reduce:
Debate and scrutiny.
Can create:
Permanent temporary laws.
Ordinances may be used:
Strategically when Parliament/Legislature is not in session.
In genuine emergencies:
Delay caused by waiting for legislative session may harm public interest.
Use only where:
Immediate action is demonstrably necessary.
Require:
Prompt discussion after reassembly.
Repeated re-promulgation should be:
Strongly discouraged and subject to constitutional scrutiny.
The Executive should maintain:
Clear constitutional reasons for promulgation.
Make the:
Reasons and legal basis
publicly accessible where appropriate.
Ordinance-replacing Bills should receive:
Adequate legislative scrutiny.
The strongest line is:
"The Ordinance is an emergency door in the constitutional legislative structure, not a parallel entrance that the Executive can use to bypass Parliament indefinitely."
Ordinance-making is an exceptional legislative power vested in the President under Article 123 and Governors under Article 213. It enables urgent law-making when the Legislature is not in session, but its temporary nature and legislative accountability are essential to preserving the parliamentary balance.
D.C. Wadhwa → Re-promulgation cannot become routine.
Krishna Kumar Singh → Temporary and constitutionally controlled power.
A.K. Roy → Ordinance power remains subject to constitutional scrutiny.
The ordinance power is constitutionally legitimate because emergencies and legislative gaps sometimes require immediate action. However, its democratic legitimacy depends on ensuring that temporary executive legislation remains temporary and subject to prompt legislative scrutiny.
