Ordinance Making Power of President

The Ordinance Making Power of the President, under Article 123 of the Indian Constitution, allows the President to promulgate ordinances during the recess of Parliament. This ordinance carries the same legal weight as an act of Parliament but is temporary. It enables the President to take immediate action in situations where legislative intervention is essential.

However, the ordinance-making power of the President is not absolute and is subject to certain limitations. For instance, an ordinance issued by the President must be approved by Parliament within six weeks of the next session, or it will cease to have effect. This ensures that the use of ordinance remains a temporary measure, with Parliament retaining the ultimate legislative authority.

Ordinance Making Power of President Constitutional Provision

The ordinance-making power of the President of India is a distinctive feature not commonly found in the Constitutions of many democratic nations, including the U.S.A. and the U.K. Importantly, this power is not limited to times of national emergency, as the President can issue ordinances even in the absence of war, external aggression, or armed rebellion.

• Article 123(1) of the Indian Constitution empowers the President to promulgate ordinances when both Houses of Parliament are not in session, provided that he is satisfied that immediate action is necessary due to urgent circumstances.

What is Ordinance?

An ordinance is a temporary law enacted by a non legislative authority, typically the executive, under specific circumstances and can bring about legislative changes. The Supreme Court has explained that the power to promulgate ordinance is an emergency authority granted to the executive only, meant to address urgent situations.

• History of Ordinance in India: The power of ordinance making in India was first introduced through theIndian Councils Act of 1861, following the Revolt of 1857, to strengthen the position of the Viceroy.
  • The Government of India Act, 1935,granted the Governor General the authority to promulgate ordinances, a provision later adopted in the Indian Constitution under Article 123.
• Features of Ordinance: An ordinance, similar to any other form of legislation, can have a retrospective effect, meaning it can be enacted to take effect from a previous date.
  • It has the authority to modify or repeal existing laws passed by Parliament or other ordinances.
  • Additionally, the ordinance can change or amend tax laws.
  • However, it is important to note that an ordinance cannot be used to amend the Constitution. 

Ordinance Making Power of President Limitation

The ordinance-making power of the President is not discretionary; the President can only issue or withdraw an ordinance based on the advice of the Council of Ministers, which is headed by the Prime Minister. This power is subject to four key limitations:

• Parliamentary Sessions: The President can promulgate an ordinance only when both Houses of Parliament are not in session or when at least one House is not in session, as legislation requires approval from both Houses.
  • Therefore, the President's power to legislate by ordinance is not equivalent to the Parliament’s legislative power.
• Justiciability of the President's Satisfaction: The President can issue an ordinance only if satisfied that immediate action is necessary. In the Cooper case (1970), the Supreme Court ruled that this satisfaction could be challenged in court on grounds of malafide, meaning the President's decision to issue an ordinance could be questioned if it was made to bypass parliamentary debate on a controversial issue.
  • Initially, the 38th Constitutional Amendment Act of 1975 made thePresident's satisfaction non-justiciable, but this provision was repealed by the 44th Amendment Act of 1978.
  • As a result, challenges based on malafide intentions remain valid, allowing for judicial scrutiny of the President's actions in ordinance-making.
  • Thus, the justiciability of the President's satisfaction ensures accountability in exercising this legislative power.
• Duration and Validity Constraints: The President's ordinance-making power is equivalent to Parliament's law-making authority in all respects except for duration, which leads to two key implications:
  • An ordinance can only be issued on subjects where Parliament has the power to legislate
  • An ordinance is subject to the same constitutional limitations as parliamentary acts, meaning it cannot infringe upon or eliminate any fundamental rights.
• Maximum Validity Period: Every ordinance issued by the President during Parliament's recess must be presented to both Houses upon their reassembly. If both Houses approve the ordinance, it becomes an act; if no action is taken, the ordinance lapses six weeks after Parliament reconvenes.
  • It can also be annulled earlier if both Houses pass resolutions disapproving it.
  • The maximum lifespan of an ordinance can extend to six months and six weeks, considering the longest gap between parliamentary sessions, and any actions taken under the ordinance before it lapses remain valid and effective.

Ordinance Making Power of President Vs Governor

Article 213 of the Indian Constitution grants the Governor the authority to promulgate ordinances when the state legislature is not in session, whether it is a unicameral or bicameral assembly. While this ordinance-making power is largely similar to the President’s under Article 123, a comparative analysis highlights certain differences as follows:

Ordinance Making Power of President Repromulgation of Ordinance

The ordinance-making power of the President requires that when a bill to replace an ordinance is introduced in the Lok Sabha, a statement explaining the need for immediate legislation by ordinance must also be presented. 

•  D. C. Wadhwa case: The court noted that between 1967 and 1981, the Governor of Bihar issued 256 ordinances, many of which were promulgated repeatedly, keeping them in force for periods of up to fourteen years.
  • Violation of Constitution: Consequently, the court ruled that continuous promulgation of ordinances with the same provisions, without any effort to have them passed by the legislative assembly, violated the Constitution.
  • Moreover, the court emphasized that the exceptional power to issue ordinances cannot replace the legislative authority of the state legislature.

Ordinance Making Power of President FAQs

Q1. What is the ordinance-making power of the President?

Ans. The ordinance-making power of the President allows him to promulgate temporary laws when both Houses of Parliament are not in session, provided immediate action is necessary.

Q2. Under which article of the Indian Constitution is the ordinance-making power of the President mentioned?

Ans. The ordinance-making power of the President is mentioned under Article 123 of the Indian Constitution.

Q3. Can the President issue ordinances at any time, or are there conditions to be met?

Ans. The President can only issue ordinances when both Houses of Parliament are not in session, and he is satisfied that immediate action is necessary due to urgent circumstances.

Q4. How long does an ordinance issued by the President remain valid?

Ans. An ordinance issued by the President remains valid for a maximum of six weeks after Parliament reassembles unless it is approved by both Houses or disapproved earlier.

Q5. What happens if an ordinance is not approved by Parliament within six weeks of its reassembly?

Ans. If an ordinance is not approved by Parliament within six weeks of its reassembly, it ceases to have effect.