Author: Shalini S, Saveetha School of Law
To the Point
The ordinance-making power vested in the executive represents one of the most debated features of constitutional governance in India. Article 123 empowers the President, while Article 213 authorizes Governors to promulgate ordinances when the legislature is not in session. This mechanism was designed as an emergency measure to address urgent situations requiring immediate legislative action. However, the increasing frequency of ordinance issuance has raised serious questions about whether this power serves its intended constitutional purpose or has transformed into a convenient political instrument to bypass legislative scrutiny.
The constitutional framers envisioned ordinances as temporary measures, valid for six weeks after the legislature reassembles. Yet recent trends demonstrate a pattern of re-promulgation, where the same ordinance is issued repeatedly without placing it before the legislature. This practice undermines democratic principles and reduces parliamentary oversight. The executive’s ability to make laws without immediate legislative approval creates an inherent tension between efficient governance and democratic accountability.
Critics argue that frequent ordinance issuance reflects either legislative inefficiency or executive overreach. When governments use ordinances to introduce controversial measures, they avoid immediate parliamentary debate and potential opposition. This tactic becomes particularly problematic when ordinances are used for matters that could wait for regular legislative sessions. The lack of immediate scrutiny means that poorly drafted provisions may escape early detection, leading to implementation challenges.
Conversely, proponents maintain that ordinances remain essential for responsive governance. Natural disasters, economic crises, and security threats demand swift action that legislative procedures cannot accommodate. The power ensures continuity of governance during legislative recesses and enables the executive to respond to unforeseen circumstances. The question remains whether current usage patterns align with constitutional intent or whether reforms are necessary to prevent abuse while preserving genuine emergency response capabilities.
Use of Legal Jargon
The doctrine of constitutional necessity underpins the ordinance-making power, establishing it as an extraordinary legislative instrument exercisable during parliamentary or assembly recess. The jurisprudential foundation rests on the principle of legislative parallelism, whereby ordinances possess the same force and effect as parliamentary acts, subject to temporal limitations. This quasi-legislative authority constitutes a deviation from the separation of powers doctrine, creating concurrent legislative competence within the executive branch.
The constitutional validity of ordinances hinges upon satisfaction of subjective satisfaction test, wherein the executive must form a bona fide opinion regarding the necessity for immediate action. The satisfaction of the President or Governor, though not justiciable in ordinary circumstances, remains subject to judicial review on grounds of mala fide exercise or colorable legislation. The doctrine of eclipse applies when ordinances contradict fundamental rights, rendering them void ab initio rather than merely voidable.
The principle of non-obstante clause embedded in Articles 123(2) and 213(2) grants ordinances overriding effect over existing legislation within prescribed limits. However, this supremacy operates within the constitutional framework of legislative competence as delineated in the Seventh Schedule. The doctrine of occupied field and repugnancy apply equally to ordinances as to regular legislation, ensuring constitutional hierarchy is maintained.
The concept of promulgation implies immediate effect without requiring publication in the official gazette, though practical implementation necessitates such publication. The doctrine of legitimate expectation applies to rights created under ordinances, protecting bona fide transactions until the ordinance lapses or receives legislative disapproval. The principle of constitutional morality demands that ordinance-making power be exercised sparingly and not as a substitute for ordinary legislative processes.
The jurisprudential challenge lies in balancing the need for expeditious governance against the imperative of legislative supremacy. The doctrine of checks and balances operates through mandatory legislative ratification, while the prohibition against re-promulgation without legislative consideration prevents circumvention of parliamentary oversight. Constitutional propriety demands adherence to substantive and procedural limitations to prevent transformation of this emergency power into routine legislative machinery.
The Proof
Empirical evidence demonstrates a concerning trend in ordinance issuance patterns across Indian governance. Statistical analysis reveals that between 2014 and 2019, the central government promulgated approximately 32 ordinances, with several instances of re-promulgation before parliamentary approval. State governments have shown even higher frequencies, with some states issuing ordinances for matters that could reasonably await legislative sessions. This quantitative data suggests a shift from emergency usage to routine legislative practice.
Documentary evidence from parliamentary records indicates that ordinances increasingly address matters lacking genuine urgency. Land acquisition amendments, economic reforms, and administrative restructuring have been introduced through ordinances despite foreseeable legislative opportunities. The gap between ordinance promulgation and subsequent legislative sessions has often been minimal, questioning the necessity argument. Furthermore, instances exist where ordinances were issued days before scheduled parliamentary sessions, raising doubts about emergency claims.
Comparative analysis with other parliamentary democracies reveals that India’s ordinance usage far exceeds international norms. Countries like the United Kingdom and Australia rarely employ analogous executive legislative powers, relying instead on expedited parliamentary procedures for urgent matters. Even nations with constitutional provisions for executive decrees maintain stricter limitations and more robust judicial oversight. This international perspective highlights potential overuse within the Indian context.
The practice of re-promulgation provides compelling evidence of constitutional misuse. Successive governments have re-issued identical ordinances multiple times without seeking legislative approval, effectively bypassing parliamentary scrutiny for extended periods. The Supreme Court has noted that such practices violate constitutional spirit, even if technically permissible under literal interpretation. The absence of parliamentary debate deprives citizens of transparent policy discussion and accountability mechanisms.
Historical analysis shows that ordinance-making was intended for genuine emergencies like war, natural calamities, or economic crises requiring immediate response. Contemporary usage, however, encompasses routine administrative matters, policy initiatives, and even controversial political decisions. This expansion of scope indicates functional transformation from constitutional necessity to political convenience.
The pattern suggests that executives prefer ordinances to avoid potential legislative opposition or amendment, thereby controlling both content and timing of legal changes.
Abstract
This article examines the constitutional framework governing ordinance-making powers in India, analyzing whether this extraordinary legislative mechanism serves its intended purpose as a constitutional necessity or has devolved into a political instrument for executive convenience. The research investigates the historical context, jurisprudential foundations, and contemporary applications of Articles 123 and 213 of the Indian Constitution, which vest ordinance-making authority in the President and Governors respectively.
The study adopts a doctrinal research methodology, analyzing constitutional provisions, statutory frameworks, and judicial precedents to understand the legal dimensions of ordinance-making power. Through critical examination of Supreme Court judgments, the research traces the evolution of judicial interpretation regarding the scope, limitations, and justiciability of executive satisfaction in promulgating ordinances. The analysis encompasses landmark cases that have shaped the constitutional boundaries of this power while addressing concerns about democratic accountability and legislative supremacy.
The article explores the tension between efficient governance and democratic principles, examining how ordinances enable swift executive action during legislative recesses while potentially circumventing parliamentary oversight. By analyzing empirical data on ordinance issuance patterns, re-promulgation practices, and subsequent legislative treatment, the research reveals concerning trends that suggest transformation from emergency measure to routine legislative tool. Comparative analysis with international jurisdictions provides perspective on India’s ordinance usage relative to global parliamentary democracies.
The research identifies critical issues including the subjective nature of executive satisfaction, absence of pre-promulgation judicial review, challenges in post-facto scrutiny, and the constitutional propriety of repeated re-promulgation. The study examines the doctrine of constitutional morality in this context, questioning whether current practices align with the spirit of constitutional governance or represent institutional overreach undermining separation of powers.
The findings suggest that while ordinance-making power remains constitutionally necessary for genuine emergencies, reforms are needed to prevent abuse. The article proposes that stricter judicial scrutiny, legislative guidelines on permissible grounds, mandatory time limits between re-promulgations, and enhanced parliamentary oversight mechanisms could restore the balance between executive efficiency and democratic accountability. The conclusion emphasizes that constitutional powers must be exercised with restraint and fidelity to their intended purpose.
Case Laws
The Supreme Court’s jurisprudence on ordinance-making power began with D.C. Wadhwa v. State of Bihar (1987), a watershed moment in constitutional interpretation. The Court struck down 256 ordinances promulgated by Bihar, establishing that repeated re-promulgation without legislative approval constitutes fraud on the Constitution. Justice Bhagwati held that ordinances cannot become permanent legislation through successive re-issuance, affirming that this power must be exercised only when immediate action is genuinely necessary. This judgment established the principle that constitutional provisions must not be reduced to mockery through mechanical application.
In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court reiterated that ordinance-making is an exceptional power exercisable only when circumstances demand immediate action. The Court emphasized that satisfaction of the Governor must be based on objective facts, not political expediency. The judgment clarified that while executive satisfaction is generally not justiciable, courts can examine whether the power was exercised mala fide or for extraneous purposes. This decision reinforced judicial oversight over ordinance promulgation while respecting executive discretion in genuine emergencies.
The case of T. Venkata Reddy v. State of Andhra Pradesh (1985) addressed the temporal validity of ordinances. The Supreme Court held that ordinances automatically lapse after the constitutional period unless replaced by legislation. The judgment clarified that rights and obligations created during an ordinance’s validity remain protected under the doctrine of legitimate expectation, but future enforcement requires legislative ratification. This decision balanced temporary governance needs against legislative supremacy.
S.R. Chaudhuri v. State of Punjab (2001) examined the scope of ordinance-making power in relation to fundamental rights. The Court held that ordinances cannot violate constitutional guarantees any more than regular legislation. The judgment applied the doctrine of eclipse, rendering ordinances conflicting with Part III void ab initio. This case established that emergency legislative power does not exempt the executive from constitutional limitations binding on the legislature.
In State of Rajasthan v. Union of India (1977), the Supreme Court addressed federalism concerns regarding ordinances. The judgment clarified that both presidential and gubernatorial ordinances must respect constitutional distribution of legislative powers. The Court held that ordinances cannot expand legislative competence beyond constitutional allocations, ensuring that emergency powers do not disturb federal equilibrium. This principle prevents ordinances from serving as instruments of constitutional overreach between central and state governments.
Conclusion
The ordinance-making power embodies a fundamental tension within constitutional governance between the need for swift executive action and the imperative of democratic accountability. While Articles 123 and 213 serve legitimate constitutional purposes by enabling governments to respond to genuine emergencies when legislatures cannot convene, the contemporary usage patterns reveal troubling departures from intended constitutional design. The transformation of this extraordinary power into a routine legislative mechanism threatens the foundational principle of parliamentary supremacy and undermines the deliberative processes essential to democratic governance.
Judicial intervention through landmark cases has attempted to establish guardrails against abuse, prohibiting practices like indefinite re-promulgation and requiring bona fide exercise of executive satisfaction. However, the inherently subjective nature of determining necessity, combined with limited pre-promulgation judicial review, creates vulnerabilities that executives have exploited. The doctrine of constitutional morality demands that constitutional powers be exercised with fidelity to their purpose, not merely their literal text.
The solution lies not in abolishing ordinance-making power but in reforming its application through institutional mechanisms. Legislative guidelines specifying permissible grounds for ordinances, mandatory cooling periods between re-promulgations, enhanced parliamentary scrutiny procedures, and expanded judicial review could restore the balance between efficiency and accountability. Parliamentary committees could be empowered to examine the necessity claims underlying ordinances, creating procedural safeguards against politically motivated misuse.
Ultimately, constitutional provisions function effectively only when political actors exercise them with restraint and respect for democratic values. The ordinance-making power must return to its intended role as a constitutional safety valve for genuine emergencies rather than a convenient bypass around legislative debate. Strengthening legislative institutions, ensuring regular parliamentary sessions, and cultivating a political culture that values deliberative democracy over executive expediency will determine whether this power serves constitutional necessity or remains vulnerable to political exploitation.
FAQS
Q1: What is an ordinance and how does it differ from regular legislation?
An ordinance is a temporary law promulgated by the President or Governor when the respective legislature is not in session and immediate action is necessary. Unlike regular legislation, ordinances do not undergo parliamentary debate, committee scrutiny, or public consultation before issuance. They possess the same legal force as acts of legislature but remain valid only for six weeks after the legislature reassembles. Regular legislation follows a detailed process involving introduction, debate, committee examination, and voting, ensuring democratic deliberation. Ordinances bypass this process, making them simultaneously efficient and potentially problematic from accountability perspectives.
Q2: Can ordinances be challenged in courts?
Yes, ordinances are subject to judicial review on multiple grounds. Courts can examine whether the executive satisfaction regarding necessity was formed bona fide or for extraneous purposes. Ordinances violating fundamental rights can be struck down as unconstitutional. Courts also review whether ordinances exceed legislative competence or violate federal distribution of powers. However, courts generally do not substitute their judgment for executive satisfaction regarding necessity, maintaining judicial deference to executive assessment of urgency. Post-promulgation review focuses on constitutional validity rather than policy wisdom or necessity determination.
Q3: What happens to actions taken under an ordinance if it lapses?
When an ordinance lapses without legislative approval, it ceases to have future effect. However, actions validly taken during its operation remain protected under the doctrine of legitimate expectation and the principle of continuity. Rights acquired, obligations incurred, and transactions completed under the ordinance generally survive its lapse unless the replacing legislation explicitly invalidates them retrospectively. Courts protect bona fide actions relying on ordinances to prevent chaos and ensure legal certainty. However, ongoing obligations requiring continuous authorization lose their legal basis once the ordinance expires.
Q4: Is there any limit on how many times an ordinance can be re-promulgated?
While the Constitution does not explicitly prohibit re-promulgation, the Supreme Court in D.C. Wadhwa v. State of Bihar established that indefinite re-promulgation without legislative consideration constitutes constitutional fraud. The Court held that ordinances cannot become permanent legislation through successive re-issuance. Constitutional propriety demands that ordinances be placed before the legislature for approval or rejection. Repeated re-promulgation avoiding legislative scrutiny violates the constitutional scheme and undermines democratic governance. Though no specific numerical limit exists, the practice must align with constitutional morality requiring legislative ratification within reasonable time.
