The Ordinance Making Power in India: A Comprehensive Guide to Article 123 and Article 213
Master Article 123 & 213 of the Indian Constitution. A complete guide to the President's & Governor's Ordinance making powers, IRAC analysis & case laws.
Article 123 of the Indian Constitution and Article 213 grant the President and Governors, respectively, a unique and powerful tool: the ability to create laws when the legislature is not in session. In the Indian constitutional framework, law-making is primarily the domain of the Legislature (Parliament and State Assemblies). However, the Constitution framers envisioned scenarios where immediate action might be required at a time when the legislative houses are not sitting. This led to the inclusion of the ordinance making power of the President and the Governor.
This article delves deep into the constitutional provisions, the specific conditions for promulgation, the evolution of judicial review, and the crucial legal precedents that define the limits of this power.
What is an Ordinance?
In simple terms, an ordinance meaning in law refers to a temporary law promulgated by the executive head of the state (President at the Centre, Governor at the State) to deal with unforeseen or urgent matters.
While it is promulgated by the executive, an Ordinance is legislative in character. It is not an executive order; it is a law. It carries the exact same force and effect as an Act of Parliament or a State Legislature, but with a specific shelf-life. It is a temporary measure designed to bridge the gap until the legislature can reassemble and enact permanent legislation.
Ordinance Making Power of the President (Article 123)
Article 123 of the Indian Constitution is the source of the President’s legislative power. It empowers the President to promulgate ordinances during the recess of Parliament.
1. Conditions for Promulgation
The power under Article 123 is not absolute. It is subject to specific preconditions:
- Recess of Parliament: The President can only exercise this power when both Houses of Parliament are not in session. If even one House is in session, an ordinance cannot be promulgated because the legislative process (passing a bill in one house and sending it to the other) is theoretically possible, albeit difficult.
- Immediate Necessity (Satisfaction): The President must be satisfied that “circumstances exist which render it necessary for him to take immediate action.” It is important to note that the “President’s satisfaction” is not personal; it is the satisfaction of the Council of Ministers. The President acts on the aid and advice of the Cabinet.
- Legislative Competence: An ordinance can only be made on subjects where the Parliament has the power to make laws (i.e., the Union List and Concurrent List).
2. Meaning of “Promulgate”
To promulgate ordinance meaning is to officially proclaim or announce it as a valid law. Once the President signs and the gazette notification is issued, the ordinance becomes active immediately.
3. Duration and Parliamentary Control
An ordinance is inherently temporary. To prevent the executive from bypassing the legislature permanently:
- Laying Requirement: Every ordinance must be laid before both Houses of Parliament when they reassemble.
- The “Six Weeks” Rule: The ordinance ceases to operate six weeks after the reassembly of Parliament. If the Houses reassemble on different dates, the six weeks are counted from the later of those dates.
- Disapproval: It can lapse earlier if both Houses pass resolutions disapproving it.
- Withdrawal: The President may withdraw the ordinance at any time.
Ordinance Making Power of the Governor (Article 213)
Parallel to the President’s power, Article 213 of the Indian Constitution grants similar powers to the Governor of a State.
1. Conditions for Promulgation
- Legislature in Recess: The Governor can issue an ordinance only when the Legislative Assembly (and Legislative Council in bicameral states) is not in session.
- Immediate Action: The Governor must be satisfied that circumstances warrant immediate action.
- Scope: The subject matter must fall under the State List or Concurrent List.
2. The President’s Instructions (A Key Distinction)
The Governor ordinance article (213) contains a unique Proviso. The Governor cannot promulgate an ordinance without instructions from the President in three specific cases:
- If a Bill containing the same provisions would have required the President’s prior sanction for introduction.
- If the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the President’s consideration.
- If an Act of the State Legislature with the same provisions would be invalid without the President’s assent (e.g., certain laws affecting powers of the High Court or acquiring property).
3. Duration and Control
Similar to the central level, a state ordinance must be laid before the assembly. It ceases to operate six weeks after reassembly or if a resolution of disapproval is passed.
Comparative Analysis: Article 123 vs. Article 213
For students and legal researchers, understanding the distinctions between the President ordinance article and the Governor’s power is vital.
| Feature | Article 123 (President) | Article 213 (Governor) |
|---|---|---|
| Authority | President of India | Governor of a State |
| Trigger | Both Houses of Parliament not in session. | Assembly (and Council, if any) not in session. |
| Jurisdiction | Union & Concurrent Lists. | State & Concurrent Lists. |
| Presidential Control | N/A | Yes. Requires President’s instructions for certain subjects. |
| Validity | Same as an Act of Parliament. | Same as an Act of State Legislature. |
| Maximum Life | 6 months (max gap between sessions) + 6 weeks. | 6 months + 6 weeks. |
| Withdrawal | By President at any time. | By Governor at any time. |
Judicial Review: Is the “Satisfaction” Justiciable?
For decades, a major legal question was: Can the court question the President’s or Governor’s claim that an ‘emergency’ existed?
The Historical Evolution
- R.C. Cooper Case (1970): The Supreme Court hinted that the President’s satisfaction could be challenged if it was “mala fide” (in bad faith).
- 38th Amendment (1975): To block judicial scrutiny, the government inserted a clause stating the satisfaction of the President/Governor was “final and conclusive” and non-justiciable.
- 44th Amendment (1978): This amendment deleted the clause inserted by the 38th Amendment, restoring the power of the courts to review the satisfaction.
- A.K. Roy v. Union of India (1982): The Court confirmed that judicial review is not excluded. The President’s satisfaction is not a “political question” immune from scrutiny.
- D.C. Wadhwa v. State of Bihar (1987): The Court struck down the practice of “Re-promulgation of Ordinances.” It held that re-issuing the same ordinance repeatedly without placing it before the legislature is a fraud on the Constitution.
The Definitive Ruling: Krishna Kumar Singh (2017)
In Krishna Kumar Singh v. State of Bihar, a 7-judge Constitution Bench settled the law definitively regarding the ordinance article:
- Not Immune: The satisfaction of the President (Art 123) and Governor (Art 213) is not immune from judicial review.
- The Test: Courts can strike down an ordinance if the satisfaction was based on no material, irrelevant material, or if the action was a “fraud on power” (actuated by oblique motives).
- Democratic Accountability: The Court ruled that failure to lay the ordinance before the legislature is a serious constitutional infraction. An ordinance does not create “enduring rights” if it is not ratified by the legislature; it dies a natural death.
IRAC Analysis: The Constitutionality of “Bypassing” the Legislature
One of the most contentious issues regarding the ordinance meaning in law is the misuse of the power to avoid legislative debate. Below is a formal legal analysis of such a scenario.
Hypothetical Scenario: The Government realizes it lacks the numbers to pass a controversial Bill in the Rajya Sabha. The Government advises the President to prorogue (end the session of) the Houses immediately. The very next day, the President promulgates an Ordinance containing the exact provisions of the controversial Bill.
1. Issue
Is an ordinance promulgated immediately after a legislative session is prorogued, specifically to bypass the legislature, constitutionally valid?
2. Rule
- Article 123(1): The President can promulgate an ordinance only when satisfied that circumstances exist rendering it necessary to take immediate action.
- Fraud on Power: In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court held that the satisfaction of the President is subject to judicial review. If the power is exercised for an “oblique motive” or constitutes a “fraud on power,” it is unconstitutional.
- Executive vs. Legislative: The ordinance power is an emergency power, not a parallel source of law-making (D.C. Wadhwa v. State of Bihar).
3. Analysis
In this hypothetical, the formal condition of Article 123 (Parliament not being in session) is technically met because the House was prorogued. However, the intent determines validity.
The Supreme Court in Krishna Kumar Singh established that the court can look into the material forming the basis of the President’s satisfaction. Here, the “emergency” or “necessity” is artificial. The necessity for the ordinance did not arise from an external unforeseen event, but was manufactured by the executive by proroguing the House.
Proroguing a House solely to pave the way for an ordinance is a deliberate attempt to subvert the democratic legislative process. It denies the Parliament its constitutional right to debate and vote on laws. This constitutes a “colorable exercise of power”—doing indirectly what cannot be done directly. Since the executive could not pass the Bill legally, they used the ordinance route to bypass the check and balance of the Rajya Sabha.
4. Conclusion
Such an ordinance would be unconstitutional and void. The action constitutes a fraud on the Constitution. While the President has the power to promulgate ordinances, using this power to deliberately bypass the legislature when no genuine emergency exists violates the principle of parliamentary supremacy and the conditions laid out in Article 123.
Frequently Asked Questions (FAQ)
1. What is the difference between an Act and an Ordinance?
An Act is a permanent law passed by the Parliament or State Legislature and assented to by the President/Governor. An Ordinance is a temporary law promulgated by the President/Governor when the legislature is not in session. However, once promulgated, an ordinance has the same force and effect as an Act.
2. Can an Ordinance be retrospective?
Yes. The ordinance making power of the President includes the power to make laws with retrospective effect (effective from a back date), just like the Parliament.
3. Can an Ordinance amend the Constitution?
No. An ordinance can amend or repeal any other law (Act of Parliament), but it cannot be used to amend the Constitution of India.
4. What happens if the Parliament takes no action on an Ordinance?
If the Parliament reassembles and takes no action, the ordinance automatically expires (lapses) six weeks after the date of reassembly.
5. What is “Re-promulgation” of an Ordinance?
Re-promulgation is the practice of issuing the same ordinance again after it lapses, without getting it passed by the legislature. The Supreme Court in D.C. Wadhwa and Krishna Kumar Singh declared this practice unconstitutional and a “subversion of the democratic legislative process.”
6. Does the President act on his own discretion under Article 123?
No. Under Article 74, the President acts on the aid and advice of the Council of Ministers. The “satisfaction” mentioned in Article 123 is effectively the satisfaction of the Government, not the personal satisfaction of the President.
