The ordinance-making power of the President and the Governor is an extraordinary legislative power granted under the Constitution of India. It is used to meet urgent situations when the legislature is not in session. This power allows the executive to temporarily perform a legislative function. It operates under strict constitutional limitations. There is also parliamentary or legislative oversight.
Ordinances have the same force as an Act of the legislature. However, they are inherently temporary in nature. They are intended to be used only as an exception. Ordinances are not a substitute for regular law-making.
Constitutional Basis
The ordinance-making power of the President is conferred under Article 123 of the Constitution. The Governor derives this power under Article 213.
The provisions allow the President or the Governor to promulgate ordinances. This occurs when the respective legislature is not in session. Immediate action must be necessary. The constitutional intent is to ensure continuity of governance during legislative recesses without compromising democratic accountability.
Also Read- Federalism in India – Cooperative vs Competitive
Conditions for Promulgation of Ordinances
An ordinance can be promulgated only when specific constitutional conditions are satisfied.
First, either one or both Houses of Parliament, in the case of the President, or the State Legislature, in the case of the Governor, must not be in session.
Second, the President or the Governor must be satisfied that circumstances exist which render it necessary to take immediate action. This satisfaction is not absolute and is subject to judicial review.
Third, the ordinance must relate to a subject over which the respective legislature has the power to make laws.
If these conditions are not fulfilled, the ordinance is liable to be struck down as unconstitutional.
Nature and Legal Effect of Ordinances
An ordinance has the same force and effect as an Act of Parliament or a State Legislature. It can create rights, impose obligations, amend existing laws, or even repeal statutes.
However, unlike regular legislation, an ordinance is a temporary law. It must be presented to the legislature when it reassembles. It will cease to operate six weeks after the legislature resumes, unless it is approved and converted into an Act.
Failure to place the ordinance before the legislature invalidates it.
Duration and Lapse of Ordinances
An ordinance remains in force for a maximum period of six weeks from the reassembly of the legislature. If both Houses pass a resolution disapproving the ordinance, it ceases to operate earlier.
The President or the Governor also has the power to withdraw an ordinance at any time before its expiry.
Once an ordinance lapses, it becomes void. However, actions taken under a valid ordinance during its operation are generally protected unless otherwise specified.
Ordinance-Making Power of the Governor
The Governor’s ordinance-making power under Article 213 closely mirrors that of the President, with an important distinction. The Governor cannot promulgate an ordinance on matters where a Bill would require the prior assent of the President.
In States under President’s Rule, the ordinance-making power is exercised by the President, not the Governor.
This ensures that State-level ordinances remain consistent with the broader constitutional framework and Union interests.
Judicial Review of Ordinances
Although the satisfaction of the President or Governor is subjective, it is not immune from judicial scrutiny. Courts can examine whether the conditions for promulgation existed and whether the ordinance was issued in a bona fide manner.
Judicial review primarily focuses on misuse of power, absence of urgency, or repeated re-promulgation of ordinances without legislative approval.
The judiciary has consistently held that ordinances cannot be used to bypass the legislature or undermine democratic processes.
Also Read- Doctrine of Pith and Substance
Re-Promulgation of Ordinances
Repeated re-promulgation of ordinances without placing them before the legislature has been strongly criticized by courts. Such practices defeat the constitutional scheme and convert an emergency power into a parallel legislative mechanism.
The Supreme Court has made it clear that re-promulgation of ordinances is permissible only in exceptional circumstances. It cannot become a routine exercise.
Democratic Concerns and Criticism
The ordinance-making power has often been criticized as an encroachment upon the principle of separation of powers. Excessive or politically motivated use of ordinances weakens legislative supremacy and democratic accountability.
While the power is constitutionally valid, its misuse raises serious concerns about executive dominance and erosion of parliamentary democracy.
Contemporary Relevance
In modern governance, the ordinance-making power continues to be invoked in situations involving economic reforms. It is also used in cases of administrative urgency and public interest matters. However, increasing judicial scrutiny has acted as a deterrent against arbitrary use.
A constitutional democracy demands that ordinances remain a tool of necessity, not convenience.
Also Read- Doctrine of Severability
The ordinance-making power of the President and the Governor is an exceptional constitutional mechanism. It is designed to address urgent situations during legislative recesses. While ordinances carry the force of law, they are temporary and subject to legislative approval and judicial review.
Used responsibly, this power ensures continuity of governance. Misused, it undermines democratic institutions. The constitutional balance lies not in denying the power, but in exercising it with restraint, accountability, and respect for legislative supremacy.
Connect with us on Instagram – X – LinkedIn for daily updates, quizzes, and other materials
