The Ordinance making power of the President and the Governor is one of the important legislative powers vested on the executives by the Constitution of India. Ordinance making power refers to the power of the executives (President and Governor) to pass laws on urgent or unforeseen matters. Despite the fact that India follows the Trias Politica model i.e., separation of powers, there are several instances where the powers of the three institutions (Legislature, Executive, and Judiciary) overlap and one such power is the promulgation of the ordinance. This power of the President and Governor is subjected to certain conditions and limitations which will be discussed later in this article.

Let us discuss in detail the ordinance power of President and Governor in the following article. This is one of the important topics under Indian Polity and by covering this topic, it will be easy for the UPSC IAS aspirants in their Prelims as well as Mains examination.

राष्ट्रपति और राज्यपाल की अध्यादेश बनाने की शक्ति के बारे में आप हिंदी भाषा में भी पढ़ सकते हैं।

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Ordinance Making Power Of President

Article 123 of the Indian Constitution vests the President of India, the power to promulgate ordinance when either of the two houses of the Parliament is not in session. As mentioned earlier, this power of the President is subjected to a few limitations. They are as follows,

• The ordinance-making power is available to the President only when either of the Houses of Parliament is not in session or when both the Houses are not in session.
• According to Article 123(1), the President can promulgate an ordinance only when he is satisfied that the circumstances exist which render it necessary for him to take immediate action.
• The ordinance enacted should not abridge or take away any of the fundamental rights enshrined in the Indian Constitution.
• According to Article 123(2)(a), every ordinance introduced during the recess of the Parliament should be laid before both the Houses of Parliament when it reassembles. This article also states two circumstances where the ordinance will become ineffective.
  • If the ordinance is not approved by the Parliament, then it will cease to operate at the expiration of 6 weeks from the reassembly of Parliament.
  • If the ordinance is disapproved by the Parliament before the expiration of six weeks, then the ordinance will become ineffective. Under Article 123(2)(b), even the President can withdraw the ordinance at any time.

• Either to introduce or withdraw the ordinance, the President can act only on the advice of the Prime Minister and his Council of Ministers. Thus, the ordinance making power of the President is not a discretionary one.
• The ordinance making power of the President is coextensive with the legislative power of the Parliament in two ways,
  • The President can issue an ordinance only on the subjects on which Parliament can make legislation.
  • Similarly, an ordinance is subject to the same set of limitations as that of the Parliamentary act.
• However, they differ with regard to the duration. Unlike Parliamentary laws, the laws promulgated as ordinances by the President are temporary in nature.

Study the Schedules of the Constitution of India from the linked article.

Ordinance Making Power Of Governor

• Article 213 of the Indian Constitution empowers the Governor of the State to promulgate ordinances when the State Legislative Assembly is not in session.
• In the 6 states (Karnataka, Andhra Pradesh, Telangana, Maharashtra, Bihar and Uttar Pradesh) which have bi-cameral legislatures i.e, both State Legislative Assembly as well as State Legislative Council, the Governor can promulgate ordinance when either of the houses is not in session or when both the houses are not in session.

The ordinance making power of the Governor can be better understood by making a comparative study with the ordinance making power of the President.

Read about the Fundamental duties in India here.

Difference Between Ordinance Making Power Of President And Governor

In the following table, the ordinance power of President and Governor are compared and contrasted.

Learn more about the separation of powers!

Analysis Of The Ordinance Making Power Of President And Governor

The ordinance making power of the President and Governors is also one of the controversial powers enshrined in the Constitution of India. There have been several debates and arguments on various fronts of the ordinance making power such as judicial review of this power of executives and the necessity for ‘immediate action’ while promulgating the ordinance.

Some of the major issues pertaining to the ordinance making power are discussed below.

• Though the ordinance should be promulgated only during an emergency situation and as a last resort, it is frequently used by executives. During Indira Gandhi’s rule i.e between 1970 to 1977, around 77 ordinances were passed. Though the number was declining thereafter, according to the report by PRS Legislative Research and Lok Sabha secretariat, 61 ordinances were issued by the UPA government between 2004 to 2014 and the current NDA government has surpassed the previous government and has issued 76 ordinances since 2014. It is vivid that the Government is using ordinance routes to make laws, particularly controversial ones.
• Another key issue is the re-promulgation of the ordinance. Since the ordinance issued becomes redundant after a while, the provisions are reintroduced by promulgating another ordinance similar to the previous one. In 2017, the Supreme Court of India ruled that the re-promulgation of an ordinance is an unconstitutional act.

Learn more about Veto Power!

Landmark Judgements Related to the Ordinance Making Powers Of the President And the Governors

• RC Cooper vs Union of India (1970) – In this case, the Supreme Court of India ruled that if an ordinance passed under certain circumstances which do not require immediate action, then such ordinance can be questioned in the court of law.

• D.C.Wadhwa and Ors. vs State of Bihar and Ors. (1987) – In this landmark case, it was ruled that the legislative power of the executives to promulgate ordinances should not be employed for corrupt purposes.
• Krishna Kumar Singh vs State of Bihar (2017) – In this case, the Apex court held that the re-promulgation of an ordinance is a fraud on the Constitution and also ruled that the satisfaction of the President and Governor while issuing an ordinance is subject to judicial review.

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