An ordinance is a law that is promulgated by the President of India only when the Indian parliament is not in session. President promulgates an ordinance on the recommendation of the union cabinet. Similarly, the Governor of Indian states can also initiate ordinances only when a legislative assembly is not in session when it is a unicameral legislature and when legislative assembly along with legislative council both are not in session when it is the bicameral legislature.
The topic ‘Ordinance Making Power of Executive’ is important for IAS Exam and its three stages – Prelims, Mains (GS-II) and Interview. This article will talk in detail about the ordinance making power of the President and the ordinance making power of the governor. It will also put forward the comparison between the ordinance making power of both the president and governor.
Ordinance Making Power of President & Governor – Polity Notes:- Download PDF Here
Latest News related to Ordinance-
- The Punjab Assembly passed a resolution and rejected the Centre’s recent farm ordinances and the proposed Electricity (Amendment) Bill 2020.
- The Farm ordinances were a part of the third portion of the economic package announced under Atmanirbhar Bharat Abhiyan to counter Covid-19 pandemic. Candidates can know more about Atmanirchar Bharat Abhiyan on the linked page.
- It is expected to allow free movement of agricultural produce between states and let the farmers decide to whom they want to sell their crops
- The Ordinance included –
- Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020
- Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020
- Essential Commodities (Amendment) Ordinance, 2020.
- The Electricity (Amendment) Bill 2020 centralizes the power sector through the establishment of the Electricity Contract Enforcement Authority.
Aspirants can read more on Farm Act 2020 on the linked page.
What is the Meaning of Ordinance?
Ordinances are like a law but not enacted by the Parliament but rather promulgated by President of India when Lok Sabha and Rajya Sabha or either of those is not in session. Union Cabinet’s recommendation is a must for an ordinance to be promulgated. Using ordinances, immediate legislative actions can be taken.
Note: For an ordinance to exist, it should be approved by the Parliament within six weeks of it being introduced. Parliament is required to sit within 6 weeks from when Ordinance was introduced.
Aspirants can check out the following links of relevant articles that will be helpful in the preparation of upcoming UPSC examinations –
What is Ordinance Making Power of Executive?
Ordinance Making Power of President
Article 123 deals with the ordinance-making power of the President. President has many legislative powers and this power is one of them.
Details about President’s ordinance-making power are given in the table below:
| President’s Ordinance Making Power |
He can only promulgate the ordinance under these circumstances:
|
| An ordinance can be retrospective in nature |
| An ordinance rolled out when both the houses are in session is void in nature |
| The Parliament has to approve the ordinance within six weeks of its reassembly |
| Acts, done and completed under the ordinance before it lapses, remain fully active |
| Unlike the Indian Constitution, most of the democratic constitutions of the world don’t give such ordinance making power to their President |
| It has no connection with the President’s power to proclaim a national emergency |
| The power of ordinance-making is not to be taken as a substitute for legislative power. Only under special circumstances, ordinances can be rolled out |
| President’s power to roll out ordinances is justiciable on the ground of malafide |
What are the limitations of the ordinance-making power of the President?
There are the following limitations:
- President can promulgate an ordinance only when both the houses are not in session or only one house is in session.
- For an ordinance to be promulgated, such circumstances should be there which deem it necessary for President to legislate through the ordinance
Note: In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
38th Amendment Act inserted a new clause (4) in Article 123 stating that the President’s satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground. however, the 44th Amendment to Indian Constitution reversed it and made the President’s satisfaction to bring ordinance justiciable.
- Ordinances can be introduced only on those subjects on which the Indian Parliament can make laws.
- Ordinances can not take away any rights of citizens that are guaranteed by the Fundamental Rights of the Indian Constitution.
- Ordinance ceases to exist if parliament takes no action within six weeks from its reassembly
- Ordinance also stands void if both the houses pass a resolution disapproving the ordinance
Note: The maximum life of an ordinance can be six months and six weeks.
The ordinance-making power of the President is important for UPSC 2024 and candidates may also learn the comparison between the ordinance-making power of the President and Governor.
Comparison between Ordinance Making Power of President and Governor
Article 213 deals with the power of the Governor to legislate through ordinances. His power of ordinance making is quite similar to the President’s power. The comparisons between these two w.r.t. Ordinance making is given below:
| Ordinance Making Power of President | Ordinance Making Power of Governor |
| He can promulgate ordinance when either Lok Sabha or Rajya Sabha is not in session or if both are not in session | He can promulgate ordinance when the Legislative Assembly is not in session in case of the unicameral legislature or when both Legislative assembly and council are not in session in case of a bicameral legislature |
| He can roll-out an ordinance for only those matters on which Parliament (Lok Sabha & Rajya Sabha) can make laws | He can roll-out an ordinance for only those matters on which state legislature can make laws |
| His ordinances have the same effect on policies as parliament’s acts will have | His ordinances have the same effect on policies as state’s acts will have. If his ordinance legislates on matters which state government has no power on, the ordinance stands null and void |
| The ordinance introduced by him can be withdrawn anytime | The ordinance introduced by him can be withdrawn anytime |
| His power to promulgate ordinance is not a discretionary power. Council of Ministers’ (headed by PM) advice is a pre-requisite | His power to promulgate ordinance is not a discretionary power. Council of Ministers’ (headed by CM) advice is a pre-requisite |
| No instructions are needed by President’s when he promulgates an ordinance | President’s instructions on the following three cases are must:
|
Repromulgation of Ordinance
- In Krishna Kumar Singh and Another v. State of Bihar 2017, the Supreme Court examined a case where the state of Bihar re-promulgated an Ordinance several times without placing it before the legislature.
- A seven-judge Bench of the court reiterated that legislation should normally be done by the legislature, and the Governor’s power to issue an Ordinance is in the nature of emergency power.
- The court clarified that there might be circumstances permitting the re-promulgation of an Ordinance. However, it said, repeated re-promulgations without bringing the Ordinance to the legislature would usurp the legislature’s function, and would be unconstitutional.
- The court declared the actions, in that case, to be “a fraud on constitutional power”.
- A Constitution Bench of the Supreme Court headed by then CJI P N Bhagwati held that:
- An Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature.
- If the government wishes for the Ordinance to continue in force beyond the six-week period, it “has to go before the Legislature”, which is the constitutional authority entrusted with law-making functions.
Ordinance Making Power of President & Governor – Polity Notes:- Download PDF Here
Relevant Links
| Relevant Articles: | |
| 42nd Amendment Act | Fundamental Duties |
| Lapsing of Bills | Money Bill |
| How a Bill is passed in Indian Parliament | Directive Principles of State Policy |
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