An Ordinance is a temporary law made by the President or a Governor when the legislature is not in session and immediate action is required.
In India, ordinance-making power is provided under:
- Article 123 for the President
- Article 213 for the Governor
An ordinance has the same force and effect as an Act of the legislature, but it is temporary and must be approved by the legislature within a fixed time.
Constitutional Basis
Under Article 123, the President can promulgate an ordinance when both Houses of Parliament are not in session, or when one House is not in session, and the President is satisfied that circumstances require immediate action.
Similarly, under Article 213, the Governor can issue an ordinance when the State Legislature is not in session and immediate action is required.
The power is formally exercised by the President or Governor, but in practice, it is exercised on the advice of the Council of Ministers.
So, ordinance-making is an executive law-making power, but it is not an independent personal power of the President or Governor.
Duration and Approval
An ordinance is temporary.
It must be laid before the legislature when it reassembles. It will cease to operate six weeks after reassembly unless it is approved by the legislature.
This means an ordinance can remain in force for a maximum period depending on when the legislature meets again, but after reassembly, the legislature has control over its continuation.
An ordinance can:
- be approved and converted into an Act
- be disapproved by the legislature
- lapse after six weeks of reassembly
- be withdrawn earlier by the President or Governor
This shows that ordinance-making is only an emergency or temporary law-making power, not a substitute for regular legislative procedure.
Purpose and Significance
The ordinance power exists because governance may require urgent legal action when the legislature is not in session.
It may be used for situations involving:
- economic urgency
- administrative necessity
- public health emergency
- legal vacuum
- urgent policy implementation
- unforeseen circumstances requiring immediate law
The logic is that the State should not become helpless merely because Parliament or the State Legislature is not sitting.
However, the Constitution also ensures legislative control by requiring the ordinance to be placed before the legislature.
Judicial Interpretation
The Supreme Court has held that ordinance-making power is subject to constitutional limits.
In D.C. Wadhwa v. State of Bihar, 1987, the Court criticised the repeated re-promulgation of ordinances. It held that re-promulgation of ordinances without placing them before the legislature is a fraud on the Constitution.
In Krishna Kumar Singh v. State of Bihar, 2017, the Supreme Court gave a detailed ruling on ordinances. It held that repeated re-promulgation is unconstitutional and that the satisfaction of the President or Governor is not completely immune from judicial review.
The Court made it clear that ordinances cannot be used to bypass the legislature.
Concerns
The main concern is misuse of ordinance power.
Sometimes governments use ordinances not because of genuine urgency, but because they want to avoid legislative debate or push controversial policies quickly.
This creates problems for parliamentary democracy because law-making should normally happen through debate, discussion and voting in the legislature.
Major concerns include:
- bypassing legislative scrutiny
- weakening parliamentary debate
- repeated re-promulgation
- using ordinances for politically controversial matters
- reducing accountability of the executive
- treating temporary law-making as a routine tool
The ordinance power is therefore constitutionally valid, but its overuse weakens the spirit of representative democracy.
Conclusion
An ordinance is a temporary law issued by the executive when the legislature is not in session and urgent action is needed.
It has the same force as a law passed by the legislature, but only for a limited period.
Articles 123 and 213 provide this power to the President and Governor respectively.
The ordinance power is necessary for urgent governance, but it must remain an exception. Its misuse or repeated re-promulgation goes against legislative supremacy and democratic accountability.
