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Ordinance Making Power of President – Meaning of Ordinance, Article 123

By BYJU'S Exam Prep

Updated on: November 14th, 2023

The Ordinance Making Power of the President is listed in Article 123 of the Indian Constitution. The President can succeed in replacing legislature-enacted laws whenever neither of the houses is in session. Essentially, the ordinance is a law that is promulgated by the President of the Republic of India. 6 months and 6 weeks are considered to be the maximum validity of the ordinance. The ordinance is issued by the President on the advice of the cabinet. The ordinance making power of the President can be issued when the subject demands immediate effect.

Ordinance Making Power of the President is an important topic under the Indian Polity section of the UPSC Exam. Through this article, we have holistically covered the Ordinance making power of the President, its meaning, history, constitutional provisions, limitations, differences between the Ordinance power of the President and Governor, etc.

Ordinance Meaning

According to Article 123 of the Constitution, ordinances are the laws that are promulgated by the President of India, which are done with the suggestion of the Union cabinets and become effective in the country.

Only when the Parliament is not in session can the ordinance be enacted and by which the Government of India takes immediate action, which is in the legislative process. In the same manner, only when the Legislative Assembly is not in session the Governor of the state can promulgate an Ordinance.

What is Ordinance Making Power of the President?

Ordinance making power of the President is not a legislative provision but an emergency provision. The ordinance can only be promulgated on those subjects on which Parliament is empowered to legislate, that is, the Union list or Concurrent list.

An amendment of the constitution can also be done through an ordinance. The ordinance cannot be issued if both houses are in session and are subject to Judicial Review. Ordinance-making is an emergency provision that should be avoided in a normal sense, and the maximum life of the Ordinance is 6 months or 6 weeks.

In the last 2 years, the present NDA government has promulgated four ordinances-

  • The Coal Mines (special provisions) Ordinance, 2014.
  • The Land Acquisition Ordinance.
  • The Negotiable Instruments (Amendment) Ordinance, 2015.
  • Enemy Property Ordinance.

History of Ordinance Power of President

Ordinances were included in the Constitution of India by the Government of India Act 1935 by which the Governor-General has the authority to promulgate ordinances. If there are incidences that impel the governor general to take immediate action, then only he can exercise this power by Sections 42 and 43 of this Act.

Some Constituent Assembly members emphasized that the ordinance power of the President is contrary to the morality of the constitution and is extraordinary during the debate on the ordinance-making power. This provision was created to deal with the situation that can occur without warning when either one or both houses are not in session. Experts suggest that Ordinance power should be used only during an emergency.

Ordinance Making Power of the President: Constitutional Provisions

The following are the constitutional provisions of the Ordinance Making Power of the President. These constitutional provisions will enlighten the candidates in analyzing the details of the ordinance power of the President.

  • The ordinance can be retroactive.
  • It is considered invalid if the ordinance is issued during a session of parliament.
  • To stay a law, the Parliament has to approve the ordinance within 6 weeks of its reassembly.
  • The occurrence of Acts and Laws by the ordinance remains in force until their validity expiration.
  • The power to issue the ordinance by the President of India is one of the rarest leadership powers in the world.
  • It cannot be seen as a substitute for the President’s legislative powers.
  • Only on matters for which the Parliament is empowered to legislate, can ordinances be issued.
  • Through the ordinance, the fundamental rights of citizens cannot be crossed out.
  • If both houses of the Parliament pass a resolution that disapproves of it, then the ordinance order becomes null and void.

Article 123 of the Indian Constitution

Under Article 123, the ordinances that are promulgated and an Act of the Parliament both have the same force and effect, but every such ordinance-

  1. Shall we lay before the Parliament and shall cease to operate after the six weeks from the reassembly of the Parliament?
  2. The ordinance may be withdrawn by the President at any time.

The Article 123 of the Indian Constitution states that:

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 –

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, before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and

  • May be withdrawn at any time by the President. ( Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later dates for this clause’s purposes.)
  • If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

Limitations of Ordinance Making Power of the President

The following are the limitations of the ordinance making power of the President. The ordinance can be issued in certain cases when immediate action is mandated, check the limitations.

  • In the absence of either of the houses of Parliament in the session, only the President can promulgate an Ordinance.
  • It is essential that the ordinance is passed by the parliament within 6 weeks of the reassembling of the Parliament once an ordinance has been passed.
  • If the President is not convinced that the incident needs immediate action, the ordinance cannot be issued by the President.
  • On the Prime Minister’s recommendation of the Council of Ministers, the President can promulgate and withdraw an ordinance. His authority to make decisions is not discretionary.

Difference between Ordinance Making Power of President and Governor

The ordinance-making power of the President and Governor share some differences. The ordinance power of the President has been endowed by Article 123, while that of the Governor has been provided by 213. The table highlights the differences between the ordinances, and walk through the points illustrated below to get complete knowledge of the topic.

Ordinance Making Power of President Ordinance Making Power of Governor
In the absence of either Lok Sabha and Rajya Sabha or both in the Parliamentary session, the President possesses the right to promulgate the ordinance. In the absence of the Legislative Assembly in the Parliamentary session, the Governor can promulgate an ordinance. In the case of a bicameral legislature, the governor can promulgate an ordinance in the absence of both the legislative assembly and legislative council.
The President can present an ordinance only for subjects on which Parliament has the authority to formulate laws. Only on subjects on which state legislature can formulate law can the governor roll out an ordinance.
The President ordinance and Parliament Act will possess a similar effect on policies. Both the Governor, as well as State acts possess similar effects on the policies.
The Ordinance of the President can be withdrawn at any time. The Ordinance of the Governor can be withdrawn at any time.
The power of the President to promulgate the ordinance is not discretionary. The power of the Governor to promulgate the ordinance is not discretionary.

Judicial Safeguards for Ordinance

In the R.S. Cooper v. Union of India of 1970 case, Supreme Court held that to issue the ordinance, the President’s decision could be challenged on the ground that no ‘immediate action was required and that primarily to avoid the debate and discussion in legislature, the ordinance was passed.

  • The Supreme Court held in the DC Wadhwa v. State of Bihar (1987) case, that the executive’s legislative power to issue ordinances should be used in exceptional circumstances.
  • The Supreme Court ruled in the Krishna Kumar Singh v. State of Bihar case, that the power to issue an Ordinance is not absolute.

Ordinance Making Power of the President – Justified or Not?

A new clause 4 was added to Article 123 by the 38th Constitutional Amendment Act, according to which, to issue an Ordinance, the satisfaction of the President is final and for any reason cannot be appealed to the court. The satisfaction of the President to issue an ordinance can be questioned in the court and come out as subject to Judicial review if it is based on the ground of bad faith, corrupt motives, and malaise in accordance with the 44th Constitutional Amendment Act.

Only when the President is satisfied that circumstances are mandating him to take immediate action then only he can make an ordinance. The Supreme Court held in the Cooper case of 1970, that the satisfaction of the President could be objected to and challenged in a court on the ground of malaise and bad faith. Further, the scope of Judicial Review was expanded by the S.R. Bommai v. Union of India case, according to which any action taken by the President without the pertinent materials, would be inferred to be unfaithfulness.

Recent Ordinances Issued by the President

The proclamation of an Ordinance was declared by the Government of India ‘ The Epidemic Diseases [Amendment] Ordinance 2020 on 22nd April 2020 with the intent of amending the act and adding an arrangement to penalize and punish those assaulting staff, and doctors of hospitals. The three central farm laws were first brought through the Ordinance course, which later on was replaced by laws in Parliament. The three farms’ laws are-

  1. The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance
  2. The Farmers (Empowerment and Protection) Agreement on Price Assurance, and
  3. Farm Services Ordinance.

Ordinance Making Power of the President UPSC

Ordinance making power of the President is a highly essential and pivotal topic for the IAS exam. To get in touch with the detailed topic, the candidates must go through the NCERT books and the books on Indian Polity. Referring to these books at regular time intervals will assist the candidates in framing an effective strategy for the exam.

Ordinance Making Power of the President UPSC Notes PDF

The aspirants preparing for the UPSC exam must have well-enriched cognizance of the syllabus, and the exam pattern to prepare comprehensively for the exam. It is highly essential for the candidates to refer to the recommended study material that has been well-curated by the experts. Practicing the previous year papers will enlighten the candidates toward accomplishing their desired goals.

Ordinance Making Power of the President Sample Questions

The topic pertaining to the ordinance-making power of the President is of extreme importance for the aspirants. It is advisable for the aspirants to be in touch with the type of questions asked in the exam and the pattern of the exam. Solve these questions to lead the path of accomplishment and success in the upcoming exam.

Question: Which of the following statements relating to the office of the President of India are correct? [1] The President has the power to grant a pardon to a criminal in a special case. [2] The President can promulgate ordinances even when the Parliament is in session. [3] The President can dissolve the Rajya Sabha during an emergency. [4] The President has the power to nominate two members in the Lok Sabha from the Anglo-Indian community.

Select the correct answer using the code given below – [A] 1 and 2 [B]1 and 4,  [C] 3 and 4 only, [D] 1, 3 only 4

Answer: Option B (1 and 4) The President has the power to grant a pardon to a criminal in a special case. The President has the power to nominate two members in the Lok Sabha from the Anglo-Indian community.

Question: Which one of the following Articles of the Indian Constitution vests in the President of India the power to issue ordinances? [A] Article 74, [B] Article 78, [C] Article 123, [D] Article 124 (2)

Answer: (Option C) Article 123

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