Home
Our Courses ▾
Mentorship Program 2027
Free Initiatives ▾
📝 Free Prelims Tests 📰 Free CA Tests ✍️ Free Answer Writing 📚 Free Essay Writing
Prelims Notes ▾
Polity Economy Environment International Relations Geography Science & Technology History & Culture Mapping
Mains Notes ▾
GS Paper 2 (Polity & IR) GS Paper 3 (Economy, Env, S&T) GS Paper 4 (Ethics) Essay Hub Mains Q&A
About UPSC ▾
UPSC Syllabus Exam Pattern Eligibility Criteria Cut Off Marks UPSC Calendar 2027 UPSC Result 2025
Mains Question Papers
UPSC Mains 2026 Question Papers Mains Previous Year Question Papers
Prelims 2026
UPSC Prelims 2026 Question Paper Prelims 2026 Provisional Answer Key UPSC CSE Prelims 2026 Result
Blog About Us Contact Us
New
Latest Articles
InclusiveIAS
NOTICE
📝 UPSC Mains 2026 Question Papers — all five papers now available with full PDFs: View All Papers 📝 UPSC Mains 2026 Question Papers — all five papers now available with full PDFs: View All Papers
📝 Download all UPSC Mains 2026 Question Papers
.

Ordinance-Making Power of the President – Nature, Rationale, Criticisms, Case Laws and Way Forward

  • Home
  • Ordinance-Making Power of the President – Nature, Rationale, Criticisms, Case Laws and Way Forward
Shape Image One

Ordinance-Making Power of the President -Rationale, Criticisms and Way Forward

The ordinance-making power represents one of the most constitutionally consequential and politically contested provisions in India’s governance architecture → an executive legislative power designed for genuine emergencies yet systematically converted into a routine instrument of legislative bypass, political convenience, and parliamentary circumvention. It occupies the precise intersection where executive efficiency, legislative supremacy, democratic deliberation, and constitutional design collide → making it simultaneously one of the most used and most misused provisions in the Constitution. 

The framers’ intent was clear and limited → to enable the executive to respond to genuine legislative emergencies arising when Parliament is not in session, situations where waiting for parliamentary assembly would cause irreparable harm. What has emerged in practice is something considerably more expansive → ordinances issued on non-urgent matters, repromulgated repeatedly to avoid parliamentary scrutiny, and used strategically to implement policies that Parliament might not approve, or to bypass the deliberative process that legislation is constitutionally meant to undergo. The result is a democratic paradox → an emergency power becoming a routine governance tool, a temporary measure becoming a permanent legislative instrument, and a provision designed to supplement Parliament becoming one that supplants it.

Introduction

An Ordinance is a temporary law promulgated by the President under Article 123 when the legislature is not in session and circumstances require immediate legislative action.

It is conceived as an exceptional mechanism to meet urgent situations, not as a substitute for the ordinary legislative process.

Constitutional Architecture

Article 123 — Ordinance-Making Power of the President

  • The President can promulgate an Ordinance when both Houses of Parliament are not simultaneously in session.
  • The President must be satisfied that circumstances exist which require immediate action.
  • The President exercises this power on the aid and advice of the Council of Ministers.
  • An Ordinance has the same force and effect as an Act of Parliament.
  • It must be laid before both Houses of Parliament when they reassemble.
    • It ceases to operate six weeks after the reassembly of Parliament, unless approved and converted into an Act earlier.
    • If the two Houses reassemble on different dates, the six-week period is counted from the later date.
    • Maximum Possible Duration
      • Since Article 85 requires that not more than six months shall intervene between two sessions of Parliament, an Ordinance may theoretically remain in force for approximately six months and six weeks, in case of non-approval by the Parliament . 
  • The President may withdraw the Ordinance at any time.
  • Can be Judicially Reviewed

Subjects on Which Ordinances Can Be Issued

  • An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists.  
  • An ordinance can be retrospective and may amend or repeal existing laws
  • Cannot override constitutional provisions — ordinance cannot amend Constitution 
  • An ordinance cannot abridge or take away any of the fundamental rights

Nature of Ordinance

  • Legislative in Character 
    • The ordinance-making power of the President under Article 123 is a legislative power, though exercised by the executive.
    • An Ordinance has the same force and effect as an Act of Parliament while it remains in operation. 
  • Temporary and Exceptional Power 
    • An Ordinance is intended to meet situations requiring immediate legislative action when Parliament is not fully in session.
    • It is not meant to function as a substitute for the ordinary parliamentary law-making process. 
  • Conditional Power 
    • The power can be exercised only when both Houses of Parliament are not simultaneously in session and circumstances necessitate immediate action.
    • Thus, the Constitution itself places conditions on the exercise of this power. 
  • Exercised on Ministerial Advice 
    • The President does not exercise the ordinance-making power in his personal discretion.
    • It is exercised on the aid and advice of the Council of Ministers headed by the Prime Minister. 
  • Subject to Parliamentary Control 
    • Every Ordinance must be laid before Parliament when it reassembles.
    • It ceases to operate six weeks after reassembly unless approved and converted into an Act. 
  • Subject to Constitutional Limitations and Judicial Review 
    • An Ordinance is subject to the same constitutional limitations that apply to parliamentary legislation.
    • The exercise of ordinance-making power can also be subjected to judicial review
  • Co-extensive with Parliament’s Legislative Power 
    • The President can issue an Ordinance only on matters on which Parliament is competent to legislate.
    • An Ordinance cannot be used to amend the Constitution under Article 368.

Rationale

  • Responds to Legislative Urgency 
    • Certain situations may require immediate statutory intervention when Parliament is not available to enact legislation.
    • The power prevents delays that could seriously affect administration, the economy, security or public interest. 
      • Epidemic Diseases (Amendment) Ordinance 2020 — COVID-19 pandemic — Promulgated during the sudden COVID-19 emergency to prohibit violence against healthcare personnel and damage to medical property. The provisions were subsequently enacted by Parliament 
  • Ensures Continuity of Governance 
    • The absence of a parliamentary session should not create a legislative vacuum in situations requiring urgent action.
    • Ordinances allow the State to maintain continuity in legal and administrative arrangements until Parliament can consider the matter.  
      • Specified Bank Notes (Cessation of Liabilities) Ordinance 2016 — demonetisation announced November 8 — legal framework for specified bank note cessation required immediately — Parliament not in session — legal vacuum in demonetisation implementation requiring same-day legal cover — ordinance filling gap overnight 
  • Addresses Exceptional Situations 
    • Ordinances can provide an immediate legal framework following judicial decisions, economic disruptions or other unforeseen developments. 
      • Coal Mines (Special Provisions) Ordinance, 2014 was promulgated after the Supreme Court cancelled coal-block allocations, creating an immediate framework for reallocation and continuity in the coal sector. 
      • Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Ordinance, 2011— The Institute urgently needed statutory recognition as an institution of national importance so that graduating students could lawfully receive degrees.

Issues and Criticisms

  • Bypassing Parliamentary Deliberation 
    • An Ordinance becomes law without prior debate and voting in Parliament.
    • It bypasses the opportunity for MPs to scrutinise, amend and question legislative proposals before they take effect.
      • Parliamentary democracy — legislation through deliberation — debate, scrutiny, amendment — ordinance bypassing all of this 
    • Important legislation may also escape detailed examination by Parliamentary Committees. 
      • Committee scrutiny — standing committees examining bills — identifying flaws — ordinance avoiding this entirely 
    • Opposition input — parliamentary debate — incorporating opposition perspectives — improving legislation — ordinance eliminating 
    • Bicameral check — Rajya Sabha examining Lok Sabha decisions — ordinance bypassing Rajya Sabha entirely
    • Accountability — ministers defending legislative choices in Parliament — ordinance avoiding this accountability
    • Legislative quality — ordinances — without parliamentary improvement — often containing deficiencies — governance consequences
  • Undermining Separation of Powers / Executive Encroachment on Legislative Domain 
    • Law-making is primarily the responsibility of Parliament in a parliamentary democracy.
    • Frequent resort to Ordinances allows the executive to exercise legislative power and may disturb the constitutional balance between the legislature and executive. 
    • The ordinance power is constitutionally permissible because it is temporary and subject to parliamentary control; its excessive use risks transforming an exceptional mechanism into a parallel method of legislation. 
      • Democratic legitimacy — laws made by unelected executives — not democratically deliberated — legitimacy deficit
      • Checks and balances — ordinance bypassing legislative check on executive — reducing executive accountability
  • Absence of Genuine Urgency 
    • The Constitution envisages Ordinances for situations requiring immediate action.
    • In practice, Ordinances may sometimes be issued for political or administrative convenience even when waiting for parliamentary consideration may have been possible.
      • Routine legislation — ordinances issued on clearly non-urgent matters — where waiting for Parliament would cause no harm
      • Political convenience — government issuing ordinances to avoid difficult parliamentary debates — not genuine urgency
      • Majority circumvention — government lacking Rajya Sabha majority — using ordinance to bypass upper house — constitutional bypass
        • Farm ordinances 2020 — contentious agricultural legislation — ordinance route avoiding committee scrutiny — non-urgent subject — political choice not emergency  
        • Tribunals Reforms Ordinance, 2021 — Used Ordinance route for structural reform — criticised as avoiding deliberative scrutiny rather than responding to a sudden emergency. 
  • Re-promulgation of Ordinances 
    • Repeatedly reissuing substantially the same Ordinance after its expiry allows the executive to keep a law alive without securing legislative approval.
    • Such a practice undermines the temporary nature of the ordinance power and circumvents the legislature.
      • Enemy Property Amendment Ordinances, 2016 
        • The same policy was repeatedly continued through successive Ordinances while legislation remained pending. 
      • Land Acquisition Ordinances, 2014–15
        • The government repeatedly used the ordinance route to amend provisions relating to land acquisition after difficulties in securing parliamentary approval.
        • The repeated promulgations generated criticism that the Ordinance route was being used to bypass legislative opposition. 
      • Bihar witnessed extensive re-promulgation of Ordinances for years without placing corresponding legislation before the State Legislature, leading to judicial intervention in the D.C. Wadhwa case. 
        • DC Wadhwa v. State of Bihar (1987) — Re-promulgation is a “fraud on the Constitution. 
        • The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances. 
      • Repeated Bihar Ordinances—Krishna Kumar Singh v. State of Bihar 
        • Bihar repeatedly re-promulgated Ordinances concerning the takeover of Sanskrit schools without securing legislative approval. 
        • Krishna Kumar Singh v. State of Bihar (2017) — Ordinance must be laid before legislature — repromulgation unconstitutional. 
  • Weakens Democratic Accountability 
    • Ordinary legislation requires the government to defend its proposals before Parliament.
    • Ordinance-making limits the immediate involvement of the Opposition, MPs and parliamentary committees in the legislative process. 
  • Uncertainty and Instability 
    • An Ordinance is inherently temporary and may cease to operate if Parliament does not approve it.
    • This can create uncertainty regarding rights, liabilities and administrative actions arising during the period when the Ordinance was in force.
      • Legal uncertainty — ordinances — temporary — lapsing without parliamentary approval — legal arrangements built on them — uncertain
      • Business uncertainty — contracts, transactions, arrangements — based on ordinance provisions — uncertain if ordinance lapses
      • Administrative confusion — officers implementing ordinance — uncertain if legislation will be made permanent

Case Laws

  • RC Cooper vs. Union of India (1970)
    • In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India's largest commercial banks, held that the President's decision could be challenged on the grounds that 'immediate action' was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
  • AK Roy vs. Union of India (1982)
    • In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President's Ordinance making power is not beyond the scope of judicial review.
    • However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President's decision only when there were substantial grounds to challenge the decision, and not at "every casual and passing challenge".
  • T Venkata Reddy vs. State of Andhra Pradesh
    • In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively. This implies that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.
  • DC Wadhwa v State of Bihar (1987)
    • Supreme Court holding — repromulgation of ordinances without legislative approval — unconstitutional — fraud on Constitution.
  • Krishna Kumar Singh v. State of Bihar (2017)
    • A seven-judge Constitution Bench of the Supreme Court held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
    • Held that the requirement of placing the ordinance before the Legislature is mandatory.

Way Forward

  • Restrict Ordinances to Genuine Urgency 
    • The power should be used only where immediate legislative action is demonstrably necessary and waiting for Parliament would cause serious public harm. 
  • Provide Reasons for Promulgation 
    • The government should clearly explain the circumstances creating the urgency for resorting to an Ordinance. 
    • Greater disclosure would strengthen transparency and enable subsequent parliamentary scrutiny. 
  • Ensure Prompt Parliamentary Consideration 
    • Ordinances should be brought before Parliament at the earliest opportunity.
    • The executive should not delay introducing legislation merely to prolong the operation of an Ordinance. 
  • Prevent Routine Re-promulgation 
    • The principles laid down in D.C. Wadhwa and Krishna Kumar Singh should be strictly observed.
    • Re-promulgation should not be used to circumvent an unwilling or unconvinced legislature. 
  • Strengthen Parliamentary Scrutiny 
    • Bills replacing important Ordinances should receive adequate debate and, where necessary, scrutiny by Parliamentary Committees.
    • The fact that a measure has already been implemented through an Ordinance should not make subsequent parliamentary approval a mere formality. 
  • Increase Parliamentary Sittings 
    • More frequent and longer parliamentary sessions can reduce the perceived need for Ordinances arising merely because Parliament is not in session.
    • A more continuously functioning legislature strengthens democratic oversight over law-making. 
  • Preserve Judicial Review 
    • Judicial review should remain available to prevent mala fide use, constitutional fraud and abuse of the ordinance-making power.
    • At the same time, courts must recognise legitimate situations where genuine urgency necessitates immediate executive legislation.

The ordinance-making power represents a carefully designed constitutional compromise between the need for immediate governmental action and the democratic primacy of Parliament. Its significance lies in providing flexibility during exceptional circumstances, but its legitimacy depends upon restraint in its use. When Ordinances become instruments of political convenience, repeated re-promulgation or avoidance of parliamentary scrutiny, they undermine the very parliamentary democracy they are intended to temporarily support. The constitutional objective must therefore remain clear — the Ordinance is an exception born out of necessity; legislation through Parliament is the democratic norm.

Sample Mains Question

1.The ordinance-making power is intended to meet legislative urgency, but its frequent use risks converting an exceptional power into an alternative method of legislation. Discuss.

15 Marks | 250 Words

2.Examine the constitutional provisions governing the ordinance-making power of the President. How has the Supreme Court sought to prevent its misuse?

15 Marks | 250 Words

✍️ Curated by InclusiveIAS Editorial Team

At InclusiveIAS, our editorial team is led by experts who have successfully cleared multiple stages of the UPSC Civil Services Examination, including Mains and Interview. With deep insights into the demands of the exam, we focus on crafting content that is accurate, exam-relevant, and easy to grasp.

Whether it’s Polity, Current Affairs, GS papers, or Optional subjects, our notes are designed to:

  • Break down complex topics into simple, structured points

  • Align strictly with the UPSC syllabus and PYQ trends

  • Save your time by offering crisp yet comprehensive coverage

  • Help you score more with smart presentation, keywords, and examples

🟢 Every article, note, and test is not just written—but carefully edited to ensure it helps you study faster, revise better, and write answers like a topper.

Telegram Channel Links

InclusiveIAS

Answer Writing Group

Essay Writing Group

UPSC PRELIMS NOTES

Polity

International Relations

Environment

Economy

Science and Technology

Geography

History and Culture

Mapping

UPSC MAINS NOTES

General Studies - 4 (Ethics)

General Studies - 3

General Studies - 2

General Studies - 1