Ordinance Making Power of President and Governor is an executive power mentioned in the Indian constitution. Article 123 of the Indian Constitution authorises the President to issue ordinances during Parliament's break, while Article 213 empowers Governors to issue ordinances when the legislature is not in session. The ordinance making power of the President and the Governor has been entrusted with dealing with unforeseen or urgent situations. In this article we will discuss more about Ordinance Making Power of President and Governor.

Definition – Ordinance

• An ordinance is any law promulgated by the President when the Indian parliament is not in session.
• An Ordinance may be issued on any subject on which the Parliament has the authority to legislate.
• The strategy of issuing ordinances is intended to allow the executive to deal with any unforeseen situation that arises in the country when the legislature is not in session.
• The President and Governor have legislative powers, including the ability to draft ordinances to be utilised in particular crises, but they also have the ability to publish Ordinances while the legislature is not in session.
• These ordinances have the same power and effect as a legislative act, although they are most likely just temporary.

Properties Of The Ordinance

• An ordinance can be retrospective, which means that it can be enacted prior to its approval.
• An ordinance passed while Parliament is in session is deemed null and void.
• To stay a law, the Ordinance must be approved by Parliament within six weeks of its reassembly. Its existence is terminated if the parliament does not act within six weeks of its reassembly.
• Acts, laws, and events that occurred as a result of the ordinance remain in effect until it expires.
• The Indian President is one of the few world leaders who has the authority to issue ordinances.
• Ordinance promulgation cannot be regarded as a substitute for the President's legislative authority.
• Ordinances can only be passed on subjects where the Indian Parliament has the authority to pass laws.
• Ordinances cannot be used to revoke the fundamental rights of the citizens guaranteed by the Indian Constitution.
• The ordinance would also be declared null and void if both houses passed a resolution opposing it.

Ordinance Making Power Of President

• Article 123 grants the President certain law-making powers, including the authority to issue ordinances during Parliament's recess and hence it is not possible to enact laws in the Parliament.
• Following limitations exist with regards to the president's ordinance making powers:
  • When one or either of the two Houses of Parliament is not in session, the President may promulgate an Ordinance.
  • The President cannot issue an Ordinance unless he is satisfied that the situation necessitates 'immediate action.'
  • The President's authority to issue ordinances is justiciable if intentions are proved mala fide.

Ordinance Making Power Of Governor

• Article 213 states that the Governor of the state may issue ordinances when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
• He can only promulgate an ordinance when the legislative assembly (in the event of a unicameral legislature) is not in session, or when both Houses of the state legislature are not in session, or when one of the two Houses of the state legislature is not in session.
• The final section suggests that the governor may issue an ordinance while only one House (in the event of a bicameral legislature) is in session since a law can be approved.

Ordinance Making Power Of President And Governor – A Comparative Study

Ordinance-Making Power - Judicial Perspectives

• The 38th Constitutional Amendment Act of 1975 extended the President's pleasure on the Ordinance Making Power beyond judicial review, but this provision was removed by the 44th Constitutional Amendment Act of 1978 in response to a Supreme Court decision holding that the President's satisfaction is justifiable on the basis of malafide.

RC Cooper vs. Union of India (1970)

• The Supreme Court declared in this case, that the President's decision on an ordinance can be challenged on the grounds that the ordinance does not need prompt action or that the ordinance is approved mainly to avoid discussion and debate in the legislature.

D.C. Wadhwa case (1987)

• The Supreme Court declared in this case, that continuous promulgation of Ordinances with the same wording without any attempt to pass the Bills in the Parliament/Assembly is unconstitutional and such an ordinance will be invalidated.
• The constitutional and legal validity of an ordinance signed by the President/Governor may be contested in court on the following grounds:
  • If it violates any of the basic rights guaranteed by our constitution.
  • If it violates significant articles and the fundamental structure of our Constitution.
  • If the retroactivity is unconstitutional.
  • If the President's use of the ordinance-making power is motivated by malice.

Conclusion

Our Constitution establishes a separation of powers between the legislature, executive, and judiciary, with the legislature authoring legislation. The president must exercise prudence and only issue ordinances in unanticipated or urgent situations. In most cases, the making of ordinances is a contentious issue. It seeks to upset the balance between executive and legislative powers by introducing the element of discretion into the constitutional system on the one hand, while disrupting the rule of law on the other. In fact, the President's satisfaction is the Council of Ministers' satisfaction. This means that the executive should exercise restraint and use ordinance-making power only in unexpected or urgent circumstances, and legislative consideration and debate should not be avoided.

FAQs

MCQs

1. Under which article does the President of India have the power to issue an Ordinance?

A) Article 110
B) Article 123
C) Article 213
D) Article 368

2. How long does an Ordinance remain in effect if not approved by the legislature?

A) One month
B) Three months
C) Six weeks
D) Indefinitely

3. Which of the following is NOT a limitation on the Ordinance-making power?

A) The Ordinance must be approved by the legislature
B) It cannot amend the Constitution
C) It can be issued only when the legislature is in session
D) It is subject to judicial review

4. Which article allows the Governor to issue an Ordinance?

A) Article 121
B) Article 123
C) Article 213
D) Article 110

5. What happens to an Ordinance if the legislature disapproves it?

A) It continues as law
B) It lapses
C) It becomes an Act
D) It is sent to the President for approval

GS Mains Questions and Answers

Q1: Discuss the constitutional provisions regarding the ordinance-making powers of the President and Governor. How do they differ?

Answer: The President’s ordinance-making power is provided under Article 123, and the Governor's ordinance-making power is provided under Article 213 of the Indian Constitution. Both powers are exercised when the respective legislative bodies are not in session, and there is an immediate need for legislative action. While the President issues Ordinances for the Union, the Governor does so for states.

The key difference lies in the scope and limitations of these powers. The Governor's power is subject to the President's approval in certain matters, especially when it concerns legislation that would normally require Presidential assent. In both cases, the Ordinance must be laid before the legislature when it reconvenes and must be approved within six weeks, or it lapses. Both the President and Governor cannot issue Ordinances to amend the Constitution, and their actions are subject to judicial review.

Q2: Analyze the role of judicial review in curbing the misuse of the ordinance-making power by the executive.

Answer: The judiciary plays a crucial role in ensuring that the ordinance-making power is exercised in accordance with the Constitution and is not misused by the executive. Courts have the authority to review whether the conditions for promulgating an Ordinance were genuinely met, i.e., whether the legislature was not in session and whether immediate legislative action was necessary.

In cases where the executive has misused this power for political or non-urgent reasons, the judiciary can strike down the Ordinance. The courts can also ensure that Ordinances do not violate fundamental rights or other constitutional provisions. Judicial review acts as a safeguard against arbitrary use of the executive’s power to issue Ordinances, ensuring that such actions align with constitutional norms and principles.

Q3: Examine the challenges associated with the frequent use of Ordinances in India. What are the implications for democratic governance?

Answer: The frequent use of Ordinances can undermine the role of the legislature and weaken democratic governance. While Ordinances are intended for emergency situations, their frequent promulgation can bypass the legislative process, denying elected representatives the opportunity to debate and discuss proposed laws. This can lead to executive overreach and a concentration of power in the hands of the executive.

In India, several governments have been criticized for issuing Ordinances repeatedly, especially when they face opposition in the legislature. This undermines the principle of checks and balances inherent in the parliamentary system. The judiciary has occasionally stepped in to curb such misuse, but sustained use of Ordinances as a tool of governance can erode public trust in the democratic process and diminish the importance of legislative scrutiny.

Previous Year Questions on Ordinance-Making Power

1. UPSC CSE Prelims 2019:

Question: Which of the following statements is correct regarding the Ordinance-making power of the President?

A) An Ordinance can amend the Constitution
B) An Ordinance cannot be challenged in court
C) An Ordinance remains valid for six months
D) An Ordinance must be approved by Parliament within six weeks of reassembly

Answer: D

Explanation: An Ordinance issued by the President must be approved by both Houses of Parliament within six weeks of their reassembly. If not approved, the Ordinance will lapse automatically.

2. UPSC CSE Mains 2020 (GS Paper 2):

Question: "The ordinance-making power of the executive is a necessary tool but can be easily misused." Discuss in light of recent events.

Answer: Ordinance-making powers are essential for dealing with situations requiring immediate legislative action. However, there have been instances where this power has been misused to bypass the legislature, leading to concerns about executive overreach. Recent cases in India have shown a trend where ordinances are repeatedly re-promulgated without the legislature's approval, raising questions about the democratic accountability of such actions. The judiciary has emphasized the importance of using this power only in genuine emergencies, and not as a substitute for regular legislative procedures.