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.
Related FAQs of Ordinance Making Power of President and Governor
The ordinance-making power of the President (Article 123) and the Governor (Article 213) allows them to promulgate ordinances when the Parliament or State Legislature is not in session, and immediate action is required. These ordinances have the same force and effect as a law passed by the legislature but are temporary in nature.
The President or Governor can issue an ordinance only when the Parliament or State Legislature, respectively, is not in session. Additionally, the ordinance must be based on the advice of the Council of Ministers, and there must be a situation requiring immediate legislative action.
An ordinance issued by the President or Governor must be laid before the Parliament or State Legislature when it reconvenes. If not approved within 6 weeks of reassembly, the ordinance automatically ceases to operate. The President or Governor can also withdraw the ordinance at any time on the advice of the Council of Ministers.
Yes, the ordinance-making power of the President and Governor is subject to judicial review. Courts can examine whether the ordinance was issued with malafide intent or misused, as upheld in landmark cases like RC Cooper v. Union of India (1970) and Krishna Kumar v. State of Bihar (2017).
Re-promulgation of ordinances refers to issuing the same ordinance repeatedly without getting it passed by the legislature. The Supreme Court of India has held in DC Wadhwa v. State of Bihar and Krishna Kumar v. State of Bihar that re-promulgation is unconstitutional and amounts to a “fraud on the Constitution,” undermining legislative authority.
