Parliament makes laws. But Parliament is not always in session. What if a law is needed at once? The Constitution gives the President a power to make a temporary law. This is called an ordinance. The Governor has the same power in a State. The power is useful but easy to misuse. So the courts have set limits. Exams ask about Article 123, Article 213, the six-week rule and the key cases. This post explains them in simple words. It ends with 15 previous year questions.
Key Points (Quick Revision)
- The President's ordinance power is in Article 123. The Governor's is in Article 213.
- An ordinance can be issued only when at least one House is not in session.
- It has the same force as an Act of Parliament.
- It must be approved within six weeks of Parliament reassembling, or it lapses.
- The maximum life of an ordinance is six months and six weeks.
1. What is an ordinance?
An ordinance is a temporary law made by the executive. It is issued by the President for the Union, and by the Governor for a State.
It is not a separate kind of law. An ordinance has the same force and effect as an Act passed by the legislature. Whatever Parliament can do by law, the President can do by ordinance, as long as the conditions are met.
The idea comes from the Government of India Act, 1935. Most democracies do not give the executive such a power. In India, it is a safety valve for emergencies when the House is not sitting.
2. Conditions for issuing an ordinance (Article 123)
The President can issue an ordinance only when these conditions are met.
- Parliament is not in session. At least one House must not be sitting. If both Houses are in session, no ordinance can be issued.
- Immediate action is needed. The President must be satisfied that circumstances exist which make it necessary to act at once.
- Advice of the Council of Ministers. The President acts on the advice of the Cabinet, like all other executive actions.
- Within legislative power. An ordinance can be issued only on subjects on which Parliament can make a law.
- Subject to the Constitution. An ordinance cannot take away a Fundamental Right, just as an Act cannot. An ordinance cannot amend the Constitution.
An ordinance can be issued even when only one House is in session, because a Bill cannot be passed by one House alone.
3. Life of an ordinance
An ordinance is temporary by design. The rules on its life are the most-asked part of this topic.
- It must be laid before both Houses when Parliament reassembles.
- It ceases to operate six weeks after Parliament reassembles, unless it is approved by both Houses before that.
- If the two Houses reassemble on different dates, the six weeks are counted from the later date.
- It can also be withdrawn by the President at any time.
- If both Houses pass a resolution disapproving it, it ceases to operate at once.
The maximum gap between two sessions of Parliament is six months. Add the six weeks after reassembly, and the maximum life of an ordinance is six months and six weeks.
When an ordinance lapses, acts done under it while it was in force remain valid. This was made clear by the Supreme Court.
4. The Governor's ordinance power (Article 213)
The Governor's power is the same as the President's, with the same conditions and the same six-week rule. But there are three cases where the Governor cannot issue an ordinance without the President's instructions:
- If a Bill with the same provisions would have needed the President's previous sanction for introduction in the State Legislature.
- If the Governor would have thought it necessary to reserve such a Bill for the President's consideration.
- If an Act with the same provisions would have been invalid without the President's assent.
These rules stop a State from using an ordinance to get around the President's control over certain State laws.
5. Judicial review and the key cases
Can a court examine why an ordinance was issued? The answer has changed over time.
- R. C. Cooper case (1970). The Supreme Court held that the President's satisfaction can be questioned in court if it was based on bad faith or wrong grounds. This was the Bank Nationalisation case.
- 38th Amendment (1975). It made the President's satisfaction final and beyond judicial review.
- 44th Amendment (1978). It deleted this provision. So the satisfaction of the President can again be examined by the courts.
- D. C. Wadhwa case (1987). The Bihar government had re-issued ordinances again and again for years without placing them before the legislature. The Court called this a fraud on the Constitution.
- Krishna Kumar Singh case (2017). A seven-judge bench held that re-promulgation of an ordinance is not allowed, that an ordinance must be laid before the legislature, and that the satisfaction behind it is subject to judicial review.
6. Why the power is criticised
The ordinance route is meant for emergencies. But governments have used it to avoid debate in the House, or to push through laws when they lack numbers in the Rajya Sabha.
Re-promulgation is the biggest problem. A government issues an ordinance, lets it lapse, and issues it again. This keeps a law alive for years without a vote. The Wadhwa and Krishna Kumar Singh judgments have now limited this.
Still, the power has its use. It allows the government to act in a crisis, such as a sudden court judgment that needs a quick fix, or an urgent economic measure. The test is whether the matter truly needed immediate action.
7. Ordinance vs Act - quick comparison
| Point | Ordinance | Act |
|---|---|---|
| Made by | President or Governor on Cabinet advice | Parliament or State Legislature |
| When | Only when the House is not in session | During a session |
| Force | Same as an Act | Full force of law |
| Life | Lapses six weeks after reassembly unless approved | Permanent until repealed |
| Can it amend the Constitution? | No | Only through Article 368 |
| Retrospective effect | Yes, allowed | Yes, allowed |
8. Previous year questions
- Under which Article can the President promulgate an ordinance? – Article 123
- Under which Article can the Governor promulgate an ordinance? – Article 213
- When can the President issue an ordinance? – When at least one House of Parliament is not in session
- Within how many weeks of Parliament reassembling must an ordinance be approved? – Six weeks
- What is the maximum life of an ordinance? – Six months and six weeks
- Can an ordinance amend the Constitution? – No
- Which amendment made the President's satisfaction on an ordinance final and non-justiciable? – 38th Amendment (1975)
- Which amendment restored judicial review of the President's satisfaction? – 44th Amendment (1978)
- In which case did the Supreme Court call repeated re-promulgation of ordinances a fraud on the Constitution? – D. C. Wadhwa case (1987)
- In which case did a seven-judge bench hold that re-promulgation of ordinances is not permissible? – Krishna Kumar Singh v. State of Bihar (2017)
- Does an ordinance have the same force as an Act of Parliament? – Yes
- From which Act was the ordinance-making power borrowed? – Government of India Act, 1935
- Who advises the President on issuing an ordinance? – The Council of Ministers
- Can an ordinance be withdrawn before it lapses? – Yes, the President can withdraw it at any time
- In which case was the President's satisfaction first held to be open to judicial review? – R. C. Cooper case (1970)
9. How to revise this topic
Start with the two Articles: 123 for the President, 213 for the Governor.
Next, fix the time rules: six weeks after reassembly, six months plus six weeks maximum.
Then learn the four cases and two amendments in order: Cooper 1970, 38th 1975, 44th 1978, Wadhwa 1987, Krishna Kumar Singh 2017.
Finally, remember the three cases where the Governor needs the President's instructions.
10. Frequently Asked Questions
What is an ordinance?
An ordinance is a temporary law issued by the President under Article 123, or by the Governor under Article 213, when the legislature is not in session and immediate action is needed. It has the same force as an Act.
How long does an ordinance last?
It lapses six weeks after the legislature reassembles unless it is approved before that. Since the gap between two sessions cannot be more than six months, the maximum life is six months and six weeks.
Can the courts review an ordinance?
Yes. After the 44th Amendment of 1978, the satisfaction of the President or Governor can be examined by the courts. The Krishna Kumar Singh case of 2017 confirmed this.
What is re-promulgation of an ordinance?
Issuing the same ordinance again after it lapses, without placing it before the legislature. The Supreme Court called this a fraud on the Constitution in the D. C. Wadhwa case of 1987 and held it impermissible in 2017.
When does the Governor need the President's instructions to issue an ordinance?
When a Bill with the same provisions would need the President's previous sanction, would have to be reserved for the President, or would be invalid without the President's assent.
For more Polity topics in simple language, see our President of India, Governor and State Government and Important Constitutional Amendments posts, or browse the Polity section. Preparing for a state PSC? Start with the UPPSC PCS guide or join the 100 Hour GS Course.