Ordinance making power of President

Date: December 28, 2014

Ordinance making powers of President

Historically The Government of India Act, 1935 under Section 42 and 43 authorises the Governor General to promulgate Ordinances ‘if circumstances exist which render it necessary for him to take immediate action’.

Ordinances are issued by  the President when Parliament is not in session. They can be said as tempotary laws.They are issued by the President based on the advice of the Union Cabinet. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws. Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’. It is Provided under Art123 of the constitution, which reads as-

           Art.123 (1)-If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance -
                       (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
                      (b) may be withdrawn at any time by the President. [Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session.

Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses.

Why are they issued?

Often, ordinances are used by governments to pass legislation which is currently pending in Parliament.Governments also take the Ordinance route to address matters of public concern as was the case with the Criminal Law (Amendment) Ordinance, 2013, which was issued in response to the protests surrounding the Delhi gang rape incident.

Issues related with ordinances:-

1-Promulgation and Repromulgation of Ordinances raises questions about the legislative authority of the Parliament as the highest law making body.It is not considered favourable for democratic principles. In the 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar, the SC observed:

“The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends”. It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.”

2- Most democracies including Britain, the United States of America, Australia and Canada do not have provisions similar to that of Ordinances in the Indian Constitution. The reason for an absence of such a provision is because legislatures in these countries meet year long.


Suggested question for mains-

Although the ordinance making by the head of the state is not a symbol of healthy democracy, in Indian context it is an unavoidabe fact. Comment (150 words)