Ordinance-Making Power of the President of India
đŸ“œ Ordinance-Making Power of the President of India
Constitutional Provision: Article 123
The President of India has the power to promulgate Ordinances when both Houses of Parliament are not in session. This power allows the President to make laws temporarily without going through the full legislative process during parliamentary recess.
Text of Article 123:
Power to promulgate Ordinances:
If at any time when either House of Parliament is not in session, the President is satisfied that immediate action is necessary, he may promulgate such Ordinances as he thinks necessary.
Force of Ordinance:
Every Ordinance promulgated under this Article shall have the same force and effect as an Act of Parliament.
Laying before Parliament:
Every Ordinance must be laid before both Houses of Parliament when they reassemble.
Duration and expiry:
The Ordinance shall cease to operate at the expiration of six weeks from the date the Houses reassemble, unless before that it is:
Disapproved by Parliament, or
Replaced by a formal Act of Parliament.
Key Features of Ordinance-Making Power of the President:
| Feature | Explanation |
|---|---|
| When can Ordinances be promulgated? | Only when Parliament is not in session (both Houses). |
| Condition for promulgation | President must be satisfied that immediate action is necessary. This is a subjective satisfaction but subject to judicial review. |
| Effect of Ordinance | Ordinance has the same force and effect as a law passed by Parliament. |
| Duration | Valid for 6 weeks after Parliament reassembles; after that, it lapses unless approved or replaced by an Act. |
| Laying before Parliament | Ordinance must be laid before both Houses after they reassemble. |
Scope and Limitations:
Temporary legislation: Ordinances are meant to be a temporary solution when Parliament is not in session.
Not a substitute for legislation: Ordinances cannot be a permanent or routine substitute for the legislative process.
Subject to judicial review: Courts can review whether the President’s satisfaction was genuine or if the Ordinance was promulgated arbitrarily or for an improper purpose.
No power to amend Constitution: Ordinance power cannot be used to amend the Constitution.
Judicial Interpretation & Important Cases:
R.C. Cooper v. Union of India (1970):
The Supreme Court held that the President’s satisfaction to promulgate an Ordinance is not absolute and is subject to judicial review.
D.C. Wadhwa v. State of Bihar (1987):
The Court criticized the misuse of ordinance-making power by repeatedly re-promulgating ordinances without presenting them to Parliament for approval.
Sajjan Singh v. State of Rajasthan (1965):
Clarified that the Ordinance is a temporary law and cannot conflict with the Constitution.
Comparison with Governor’s Ordinance-Making Power (Article 213):
| Aspect | President (Article 123) | Governor (Article 213) |
|---|---|---|
| Applicable to | Union Parliament | State Legislature |
| Session condition | Both Houses not in session | State Legislature not in session |
| Laying before | Both Houses of Parliament | State Legislative Assembly or both Houses (if bicameral) |
| Requirement of approval | Must be approved within 6 weeks after reassembly | Must be approved within 6 weeks after reassembly |
| Subject to judicial review | Yes | Yes |
Summary:
The President’s ordinance-making power is an emergency legislative power exercised when Parliament is not sitting.
It is temporary, extraordinary, and subject to strict checks.
The ordinance ceases to operate if not approved by Parliament within 6 weeks of its reassembly.
It is not an alternative to the regular legislative process.
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