Ordinance-Making Power of the President

(Article 123)

To understand this, let’s start with a question:
👉 “If Parliament is the law-making body, then how can the President make laws?”

The answer lies in Article 123, which gives the President a temporary law-making power, known as ordinance-making power.

It’s like a constitutional shortcut — meant only for urgent situations, not for routine use.

🧩 Basic Idea

When Parliament is not in session, and some urgent situation arises that needs immediate legal action, the President can promulgate an ordinance (that is, issue a temporary law).

These ordinances have the same force and effect as an Act of Parliament,
but they are temporary — they last only until Parliament reassembles and takes a decision on them.

Hence, ordinance = temporary law made by the President during Parliament’s recess.

🧱 Why This Power Exists

Dr. Ambedkar, while defending this provision in the Constituent Assembly, said:

“There may be a situation that suddenly and immediately arises when Parliament is not in session. This mechanism enables the Executive to deal with such a situation without waiting for Parliament to reconvene.”

So, the intention was not to give the President a parallel legislative power,
but a stop-gap arrangement for emergencies of governance — say, a natural disaster, financial crisis, or urgent legal vacuum.

🔒 Four Major Limitations on This Power

Let’s understand the four constitutional checks on this extraordinary power.

1️⃣ When Parliament is not in session

The President can issue an ordinance only when:

• Both Houses are not in session, or
• Even if one House is not in session, since law requires passage by both Houses.

If both Houses are in session, issuing an ordinance is void.
Hence, this is not a parallel law-making power — it only operates during a recess.

🟢 Example: If the Lok Sabha is adjourned but Rajya Sabha is sitting, ordinance cannot be issued because both Houses must pass a normal law together.

2️⃣ Satisfaction of the President (Need for Urgency)

The President must be satisfied that “circumstances exist which render it necessary to take immediate action.”

However, this satisfaction is not absolute.

Let’s trace how the courts handled this clause:

• 🏛 R.C. Cooper Case (1970) — Supreme Court held that the President’s satisfaction can be challenged in court if it is malafide (in bad faith).
  For instance, if the government deliberately prorogues (ends) a session just to issue an ordinance on a controversial issue — it can be struck down.
• 38th Amendment (1975) — made President’s satisfaction final and beyond judicial review.
• 44th Amendment (1978) — reversed this, restoring judicial review.

✅ So today, the President’s “satisfaction” is justiciable — courts can question it if it’s used to bypass Parliament.

3️⃣ Coextensive Power with Parliament

This means the President’s ordinance-making power is equal in scope to Parliament’s power to legislate (except for duration).

Implications:

• (a) Ordinances can be issued only on subjects on which Parliament can make laws (i.e., in the Union and Concurrent Lists).
• (b) Ordinances are subject to the same constitutional limitations as Acts of Parliament
  → they cannot violate Fundamental Rights.
  (For example, President cannot issue an ordinance to curtail Right to Life or Freedom of Speech.)

4️⃣ Parliamentary Control — Time Limit

Every ordinance must be laid before both Houses of Parliament when they reassemble.

Then one of three things happens:

Scenario	Outcome
Parliament approves it	Ordinance becomes an Act
Parliament disapproves it	Ordinance ceases to operate immediately
Parliament takes no action	Ordinance ceases after 6 weeks from reassembly

Six-week rule:

• If the two Houses meet on different dates, the six weeks are counted from the later date.

So the maximum possible life of an ordinance is about 6 months + 6 weeks:

• Six months (max gap between two sessions)
• Plus six weeks (for Parliament’s approval)

🟢 Even if the ordinance lapses, any acts done under it remain valid.

🔁 Withdrawal and Scope

• The President can withdraw an ordinance anytime before Parliament acts on it.
• However, this is not a discretionary power — it must be exercised on the advice of the Council of Ministers.
• Ordinances can be:
  • Retrospective (can take effect from a past date),
  • Amending or repealing an existing law,
  • Modifying tax laws, etc.
  • ❌ But they cannot amend the Constitution.

📜 A Note on its Uniqueness

The ordinance-making power of the Indian President is unusual —
you won’t find it in the U.S. or U.K. Constitutions.

That’s because India’s system is designed to deal with administrative urgency in a vast parliamentary democracy where sessions are limited in number.

So, while the U.S. President uses executive orders, India’s President uses ordinances — a more formal legislative tool.

🧠 Very Important: Ordinances ≠ Emergencies

Students often confuse these.

Remember:

• Emergency powers (Articles 352, 356, 360) deal with national crises.
• Ordinances (Article 123) deal with temporary legislative necessity.

A President can issue an ordinance even when there’s no emergency — for example, a sudden need to extend tax benefits or to act on a court ruling.

🏛 Parliamentary Accountability

The Rules of Lok Sabha require that whenever a bill is introduced to replace an ordinance,
it must be accompanied by a statement explaining why immediate legislation was necessary.
This ensures political accountability for ordinance use.

⚖️ Judicial Check — The D.C. Wadhwa Case (1986)

This is the landmark judgment on ordinance misuse — and UPSC’s favourite.

Background:

Between 1967–1981, the Governor of Bihar issued 256 ordinances, keeping them alive for up to 14 years by re-promulgating them again and again — without ever passing them in the legislature.

Supreme Court’s Ruling:

• Successive re-promulgation of ordinances without seeking legislative approval is a fraud on the Constitution.
• Ordinance power is an exceptional mechanism, not a substitute for normal legislation.
• Repeated re-issuance violates constitutional morality and legislative supremacy.

✅ Hence, ordinances cannot be used to govern indefinitely — they must be placed before the legislature and either approved or allowed to lapse.

🧭 Conceptual Takeaway

The Ordinance Power reflects the flexibility of the Indian Constitution —
allowing the Executive to act swiftly during legislative recess —
but it also reminds us that speed must never replace democracy.

“The ordinance is not a law of convenience, it is a law of compulsion —
meant only when Parliament genuinely cannot act in time.”