Ordinance Making Power of President and Governor – Complete Notes for UPSC
Ordinance Making Power of President and Governor
The Constitution of India under Articles 123 and 213 provides the President and the Governor, respectively, powers to promulgate ordinances but only when ‘immediate action’ is necessary and the Parliament or state legislature is not in session. Ordinances have the same force and effect as an act of legislature.
- This feature has been adopted from the Government of India Act 1935.
- The ordinance-making power of the President is an extraordinary power. It has been provided by the Constitution to deal with emergency situations. It cannot be considered as the parallel power of the President to legislate.
- The ordinance-making power of the President and Governor is identical.
Conditions for promulgating an ordinance
The Constitution has mentioned several conditions and limitations regarding the promulgation of an ordinance:
- The President can promulgate an ordinance only when either or both of the Houses of Parliament are not in session. Since a bill requires the approval of both Houses, hence an ordinance can be promulgated even when one House is in session.
Similarly, the Governor can promulgate an ordinance when the state legislature is not in session.
- The promulgation of the ordinance is subject to the satisfaction of the President or Governor. If they are advised by the Council of Ministers that the circumstances exist in which immediate action is required, they can promulgate the ordinance. All ordinances are subject to Judicial review.
Judicial Review of an Ordinance |
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- An ordinance has the same force and effect as an act of Parliament (except the period). It means it is also subject to some limitations, such as:
- An ordinance can only be promulgated on a subject on which the Parliament has the authority to make law;
- An ordinance cannot curtail or take away any of the fundamental rights. An ordinance is also considered as ‘law’ under Article 13.
- An ordinance must be laid before the Parliament or state legislature (and legislative council in case of the bicameral legislature) when it reconvenes; if the Parliament/state assembly approves it (bypassing the bill meant to replace the ordinance), it becomes an act. In case the ordinance fails to get approval, it ceases to exist after 6 weeks from the reconvening of the Parliament/legislature.
Note: When a bill meant to replace the ordinance is laid before the House, a statement explaining the circumstances in which an ordinance had to be brought must be placed before the House.
