‘RULE BY ORDINANCE’ : CRITICAL APPRAISAL OF THE ORIANCNE MAKING

POWER OF THE CENTRE AND THE STATE

“With great power, comes great responsibility.”
We have become so accustomed to legislation by the executive in the form of ordinances that,
unless the abuse is patent, no one questions the basics underlying this unique power to
formulate ordinances. Ordinances do not exist in many democracies, whether in Europe or in
North America. Its roots lie in British Raj and the framers of the Constitution found the
noxious plant most attract.
According to Montesquieu, a democratic state must necessarily keep separate the three main
organs of government, namely, the executive, the legislature, and the judiciary. In India, the
doctrine of the separation of powers divides the institutions of government into three
branches, i.e. the legislative, executive and judiciary. The powers and functions of each are
separate and carried out separately, however, no single agency is able to exercise complete
authority, each being interdependent on the other. 
The legislature makes the laws, the executive puts the laws into operation, and the judiciary
interprets the laws. However, there are several overlaps in the functions and powers of the
three institutions. In practice, such a separation is never fully achieved, over lapping of the
three functions cannot avoid the threads of the three powers and always become intertwined
to a great extent. For example, the President has certain legislative and judicial functions and
the legislature can delegate some of its functions to the executive in the form of subordinate
legislation. The Ordinance making power of the State is in furtherance of this, wherein the
executive takes the role of the legislature.
The British government as a colonial power, felt the necessity and the urge to arm its chief
executive in colonies with such legislative powers as he could in emergency occasions invoke
at will without having to risk a refusal or without having openly to account for it in order that
he may fulfil his mission with the minimum of delay of protecting the British interest.
This extraordinary power of legislation by a decree was for the first time conferred on the
Governor-General, by the Indian Councils Act, 1861.1 It was also provided for in
the Government of India Act, 19352 to allow the then governor general of India to promulgate
ordinances in such circumstances that made it necessary for him to take immediate action.

1
The Indian Councils Act, 1861, § 23 read as, “Governor-General may make Ordinances having force of law in
cases of urgent necessity. Notwithstanding anything in this Act contained, it shall be lawful for the Governor-
General, in cases of emergency, to take and promulgate from time to time Ordinances for the peace and good
government of the said territories or of any part thereof subject however to the restrictions contained in the last
preceding section; and every such Ordinance shall have like force of law with a law or regulation made by the
Governor General in Council as by this Act provided, for the space of not more than six months from its
promulgation, unless the disallowance of such Ordinance by Her Majesty shall be earlier signified to the
Governor-General by the Secretary of State for India in Council, or unless such Ordinance shall be controlled or
superseded by some law or regulation made by the Governor-General in Council at a meeting for the purpose of
making laws and regulations as by this Act provided.”
2
Government of India Act, 1935, § 42 contains a general power exercisable when immediate action is necessary
and the legislature is not in session, with provision for the control of the power by the legislature. It provides a
limited power exercisable at any time when immediate action is necessary to enable the Governor- General to
satisfactorily discharge his functions in so far as he is by or under the Act required to act in his discretion or to
exercise his individual judgment, without any provisions for control by the legislature.
The 1935 Act stated that such ordinances would have the same effect as a law passed by the
then colonial Federal Legislature of India.
The constituent assembly had extensive deliberations on whether the executive should have
the power to promulgate ordinances that would have the force of law. The question was
whether the executive should have the power to make legislative changes without the
approval of the legislature. Some argued that ordinances should be used only in the case of
emergencies, for example, in the event of breakdown of state machinery. Others argued that
law-making powers should rest only with the legislature, and not the executive.
While there were varying opinions on the need for ordinances, there was consensus amongst
members on the need to create safeguards against the law-making power of the executive, by
making this power temporary in nature. They were aware that the English and American
Constitutions don’t have such provisions, yet they opted for such provisions in good faith that
the power would be exercised only in extraordinary situations and not for political gains. 3
Therefore, the ordinance making powers were given place in the Constitution.
The ordinance making power which hitherto vested in the Governor-General of India, now,
under the Constitution vests in the President of India. Article 123 of the Constitution of India
[hereinafter, “the Constitution”] grants the president the power to promulgate an ordinance
when (i) parliament is not in session, and (ii) the President is satisfied that such circumstances
exist that require immediate action. On similar lines, such powers were also given to the
Governor of each state under Article 213 for promulgating an ordinance on urgent matter
during recess of legislature. 
However, like every coin has two sides, and as opposed to the intentions of the constitution
makers,4 these powers of the president and governors, proved to be both a boon and a bane.
On one hand there were instances where these powers have been used to abuse the
Constitution, and on the other, some emergency situations where without the exercise of
these powers, it would have been difficult to control the situation.
This paper is an attempt to critically analyse the ordinance making powers of the president
and the governors. Part I of the paper talks about

I. THE ORDINANCE MAKING POWER OF THE PRESIDENT AND THE GOVERNOR: NATURE
AND SCOPE

1. Article 123: Ordinance making power of the President

Nature of the power:

Part V, Chapter III, of the Constitution describes the ‘Legislative Powers’ of the President of
India. Article 123 talks about such a power, in the form of the ordinance making power of the
president. It reads as,

3
Constituent Assembly Debates, Vol. VIII, p. 213-217.
4
Id.
 1. If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinances as the circumstances appear to him to
require.
2. An Ordinance promulgated under this article shall have the same force and effect as
an Act of Parliament, but every such Ordinance—
a) shall be laid before both Houses of Parliament and shall cease to operate at
the expiration of six weeks from the reassembly of Parliament, or, if before
the expiration of that period resolutions disapproving it are passed by both
Houses, upon the passing of the second of those resolutions; and
b) may be withdrawn at any time by the President.
Explanation.—Where the Houses of Parliament are summoned to reassemble
on different dates, the period of six weeks shall be reckoned from the later of
those dates for the purposes of this clause.
3. If and so far as an Ordinance under this article makes any provision which
Parliament would not under this Constitution be competent to enact, it shall be void.”5
This grants the President certain law-making powers to promulgate Ordinances when either
of the two Houses of Parliament is not in session and hence it is not possible to enact laws in
the Parliament.
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. Thus, the following limitations exist
with regard to the Ordinance making power of the executive:
1. Legislature is not in session: The President can only promulgate an Ordinance when
either of the two Houses of Parliament is not in session.
2. Immediate action is required: The President cannot promulgate an Ordinance unless
he is satisfied that there are circumstances that require taking ‘immediate action’.
3. Parliamentary approval during session: Ordinances must be approved by Parliament
within six weeks of reassembling or they shall cease to operate.  They will also cease
to operate in case resolutions disapproving the Ordinance are passed by both the
Houses.
If the Houses reassemble on different date the period of six weeks is calculated from the later
of those dates. Without being approved by the Parliament and ordinance can last for a
maximum period of six months and six weeks. All acts done and completed under an
unapproved ordinance will lapse.
The President may withdraw an ordinance at any time. However, the President exercises the
power on the advice of the Council of Ministers headed by the Prime Minister.
An ordinance may have retrospective effect and may be modify repeal any act of Parliament
or even another ordinance. It may also amend or alter a tax law but never can be used to

The Constitution of India, Art. 123.

 amend the Constitution. This unusual power has been given to the President, so that the
Executive can deal with a situation of urgency.
2. Article 213: Ordinance making power of the Governor
The Governor of an Indian state draws ordinance making power from Article 213 of the
Constitution, which confers similar powers on the governor as conferred by Article 123 on
the President. This Article empowers the Governor to promulgate Ordinance, during recess of
legislature, if circumstances exist which render it necessary for him to take immediate action.
To issue an Ordinance, the Governor must be satisfied with the circumstances that make it
necessary for him to take immediate action.
Governor cannot promulgate an ordinance in any of the following three situations:
a) If the ordinance has the provisions which if embodied in a bill would require
president’s sanction.
b) If the ordinance has the provisions which the governor would reserve as a bill
containing them for the president’s sanction.
c) If an act of the state legislature has the same provisions that would be invalid without
the assent of the president.
All Ordinances promulgated by the Governor in the State have the same effect and force as
an Act of Legislature of the State. The Ordinance must be laid before the State Legislature
when it reassembles and it must be upheld by the State legislature, failure to which the
Ordinance would be invalid.
TABLE 1: COMPARISION BETWEEN THE POWERS OF THE PRESIDENT AND THE
GOVERNOR OF STATES

Ordinance Making Power of President Ordinance Making Power of Governor

He can promulgate ordinance when He can promulgate ordinance when the Legislative Assembly
either Lok Sabha or Rajya Sabha is not is not in session in case of unicameral legislature or when
in session or if both are not in session. both Legislative assembly and council are not in session in
case of a bicameral legislature.

He can roll-out an ordinance for only He can roll-out an ordinance for only those matters on which
those matters on which Parliament (Lok state legislature can make laws, i.e. the state and the
Sabha and Rajya Sabha) can make laws. concurrent list.

His power to promulgate ordinance is His power to promulgate ordinance is not a discretionary
not a discretionary power. Council of power. Council of Ministers’ advice, headed by the Chief
Ministers’ advice, headed by the Prime Minister is a pre-requisite.
Minister is a pre-requisite.

No instructions are needed by
President’s when he promulgates an
ordinance.
President’s instructions on the following three cases are must:
 If a bill containing the same provisions would have
required the previous sanction of the President for its
introduction into the state legislature
  If he would have deemed it necessary to reserve a bill
containing the same provisions for the consideration
of the President
 If an act of the state legislature containing the same
provisions would have been invalid without receiving
the President’s assent

II. THE PROBLEMS WITH ORDINANCE MAKING POWERS: ANALYSIS THROUGH EXAMPLES

1. Re-promulgation of Ordinances: Escaping Legislative Debate?

While the courts have taken a liberal approach for the satisfaction of the president, it has
ruled that the practice of re-promulgation of ordinances is manifestly illegal. 6 An ordinance
does not go through extensive debate or scrutiny of the Parliament which is the foundation of
Indian democracy.7 Hence, it cannot be made to be a substitution for laws through continuous
re-promulgation. The power is given to the President or the Governor, in situations of
the immediate need.8 Otherwise, all bills and acts must go through the traditional route.
Ordinances are not a parallel legislative power.9
In D.C. Wadhwa, the Supreme Court created some exceptions to the above rule. The court
believed that certain situations might require urgency for which re-promulgation may be
necessary, in the event that the long process of Parliamentary debate is not an option.
Unfortunately, the court did not elaborate further.10 While, the judges were scathing in their
judgement, they ultimately resorted to “hope and trust” placed in the Executive.11
However, in the recent case of Krishna Kumar, the court has provided better insight. There is
some debate about the relationship of this case with D.C. Wadhwa as it quotes the judgement
several times.12 However, the researcher believes that it overrules the previous judgement as
the judgement, while explicitly quotes parts of the former judgement, and rules against it. The
Judges admit that D.C. Wadhwa was not an effective judgement.13 The court believes that re-
promulgation of ordinances is “constitutionally impermissible.” Believing in legislative
supremacy of the Parliament, the court rules that ordinances could not be used to usurp the
Legislature, in any scenario.14
Further, the court ruled that each ordinance must be placed before the Parliament. The
majority decision ruled that this was a mandatory requirement to ensure Parliamentary
6
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, p 62.
7
Lokendra Malik, The Power of Raisina Hill: The Constitutional Position, Function, And Powers of the
President of India (2015) at 153.
8
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, p 60.
9
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, p 79.
10
D.C. Wadhwa v State of Bihar AIR 1987 SC 579, p 6-7.
11
Upendra Baxi, ‘Introduction’ in D.C. Wadhwa, Endangered Constitutionalism: Documents from the Supreme
Court Case lxxix – xc, lxxxix (Gokhale Institute of Politics and Economics, Pune, 2009) at 155-156.
12
Gautam Bhatia, The Supreme Court’s Ordinance Judgment – II: Two Debates, January 3 2017, available
at https://indconlawphil.wordpress.com/2017/01/03/the-supreme-courts-ordinance-judgment-ii-two-debates/.
13
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, p 62.
14
Id.
debate. The word “shall” has been used to substantiate their argument.15 The Judiciary has
also debated on the changes brought about by an ordinance. An ordinance when ceasing to
exist or declared void by the Parliament, will not have permanent effects. The only effects
which endure are those which affect grave matters of public interest or constitutional
necessity substantiated by concrete evidence.16
Thus, the court has ensured that ordinances cannot be effectuated time and again, and debate
before the Parliament is a must. Further, they cannot be used for making enduring changes.
Hence, current legal framework ensures that re-promulgation of ordinances cannot be used to
escape legislative scrutiny. It is clear that the Ordinance making power does not constitute the
President or the Governor into a parallel source of law making or an independent legislative
authority.

EXAMPLES
2. Ordinances and Judicial Review: An Unsettled Conundrum?
The 38th Amendment Act, inserted a new clause (4) in Article 123 stating that the President’s
satisfaction while promulgating an Ordinance was final and could not be questioned in any
court on any ground. However, 44th Amendment to Indian Constitution reversed it and made
President’s satisfaction to bring ordinance justiciable. The deletion of this clause is proves
that the Parliament wants that the President's satisfaction should not be “final and conclusive”
and that it should be open to judicial scrutiny.
In the case of S.K.G. Sugar Ltd. v. State of Bihar, it was held that promulgating of an
Ordinance is a matter purely for the subjective satisfaction of the Governor, he is the sole
Judge to consider the as to the existence of the circumstances which makes it necessary to
issue an Ordinance and “his satisfaction is not a justiciable matter.”17
However, in the case of Barium Chemicals,18 it was held that it was incorrect to say that the
empowerment of authority by the legislature to act upon his satisfaction is totally out of the
purview of judicial review. As the satisfaction comes with a requisite condition to be fulfilled
before the exercising the power, it was open to the Petitioner to show that the condition
precedent were not present.
Then, in RC Cooper v. Union of India,19 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.
In AK Roy v. Union of India20 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
15
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, p 80.
16
Id at 72-73.
17
AIR 1974 SC 1533, ¶ 832.
18
Barium Chemicals v. Company Law Board, AIR 1967 SC 295 ¶ 301, 323.
19
20
1982
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”.
However, in 1985, in the case of T. Venkata Reddy v. State of Andhra Pradesh,21 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.
Further, in the case of Krishna Kumar v. State of Bihar,22 the Supreme Court emphatically
reasserted the principle of Parliamentary supremacy, and the principle that Ordinances were
only meant to be used in exceptional situations. It held that the validity of an Ordinance was
subject to judicial review; in particular, the question of whether circumstances existed that
required emergency action, as stipulated in the Constitution, could be tested in the
constitutional courts. The judicial standard to be applied broadly resembled the standards
governing judicial review of administrative action, i.e. examining the material on the basis of
which the Executive had reached its judgment, and set it aside if the material was non-
existent, or entirely irrelevant. At the minimum, this would require the Executive to justify
the existence of an Ordinance by showing, plausibly, that an emergency existed.
Further, it was argued in DC Wadhwa v. State of Bihar23 the legislative power of the
executive to promulgate ordinances is to be used in exceptional circumstances and not as a
substitute for the law making power of the legislature. Here, the court was examining a case
where a state government continued to re-promulgate ordinances, that is, it repeatedly issued
new Ordinances to replace the old ones, instead of laying them before the state legislature. A
total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. 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.
Moreover, in S.R. Bommai v. Union of India,24 the scope of judicial review had been
expanded, where it was told that the “satisfaction” of the president while declaring
emergency under Article 356(1) is open to challenge on the grounds mala fide or being based
on extraneous or irrelevant grounds.25 Judicial review can also be done in the case where the
power has been exercised mala fide, or under misconception of the scope and nature of
power, or not taking into account relevant considerations is considered to be void and ultra
vires.
The satisfaction of the President under Article 123 and of the Governor under Article 213 is
not immune from judicial review particularly after the amendment brought about by the
forty-fourth amendment to the Constitution by the deletion of clause (4) in both the articles.

21
1985
22
23
1987
24
AIR 1994 SC 1918.
25
Id at p. 2112-13.
The test is whether the satisfaction is based on some relevant material. The court in the
exercise of its power of judicial review will not determine the sufficiency or adequacy of the
material. The court will scrutinize whether the satisfaction in a particular case constitutes a
fraud on power or was actuated by an oblique motive. Judicial review in other words would
enquire into whether there was no satisfaction at all.
However, it is seen that the condition of ‘emergency’ has rarely been questioned by the
courts.
NEED FOR REFORM: URGENT
26
After having analysed the situations in which ordinances now are issued, and the blatant
misuse of power, it is clear that the pre-requisite condition of urgency has been ignored. The
existence of the circumstances has never been probed into by the courts. How do huge
countries like the US and Canada deal with such a situation? In the same way that any other
country does - summon the legislature urgently.
After this in depth research and analysis, the following are the problems with Article 123 and
213 of the Constitution:
1. These articles are not very clear on the re-promulgation of ordinances issued under
them. . The power to promulgate ordinances has been abused not only by the states
but also by the centre with no check by the Supreme Court except when states like
Bihar went on merrily re-promulgating ordinances. In between 1967-1981 the
Governor of Bihar promulgated 256 ordinances and all these were kept in force for
periods ranging from one to fourteen years by re-promulgation from time to time.
2. The term ‘situation of emergency’ is very subjective, and this leads to misuse of the
power to issue ordinances, wherein the president/ Governor use the power to issue
ordinance even when there is no dire need. Moreover, there are hardly any checks by
the judiciary to determine if the power was used bonafide.
3. The provisions inherently speak of the aid and advice of the Council of Ministers
which before the promulgation of ordinance. It has been seen that the government
makes use of this provision to pass a legislation which the house in normal
circumstances is not ready to accept. This happen as when the house goes out of
session, the Govt. may take this chance to impose that legislation through an
ordinance with the consent of the President. This means that it is able to meet its
objective without the consent of the majority in the Houses.
4. The provision violates the principle of distribution of powers. There has always been
a controversy regarding what are to the powers and functions of the branches. The
conflict here is between the legislative and executive functions.

SOLUTIONS
One solution of the problems talked about in the above section is to ensure a proper system of
checks and balances. This is to say that no one branch is superior or inferior to one another.

26
Sunjoy Chaterjee, Krishna Kumar II: laying re-promulgations to rest? (April2018)
https://www.tandfonline.com/doi/abs/10.1080/24730580.2018.1453738 accessed 26 October 2018
So, the actions of the government in this regard could be tested through a three way check
structure, using judicial committees of the parliament, legislative mandate, and the courts.

CONCLUSION
The extraordinary power of emergency legislation by the executive, in exceptional
circumstances, still survives in substance, although considerably circumscribed, to be
invoked be the Head of the State on the advice of his ministers during recess of Parliament
and to be placed before it, when it reassembles and to cease to operate at the expiration of six
weeks from its reassembly. The power is thus shorn of much of its undemocratic character.
The power, however, appears to be necessary.
There might be a situation of emergency when the Houses of the parliament are not in
session. It is important that this situation should be dealt with and it seems to me that the only
solution is to confer upon the President the power to promulgate the law which will enable
the executive to deal with that particular situation because it cannot resort to the ordinary
process of law because the legislature is not in session.
However, ordinances should not be treated at par with an act passed by Parliament; the main
difference lies that while legislation done by Parliament, is done by an elected body which is
open to criticism whereas promulgating an ordinance is purely an executive decision, which
is not open to criticism or open discussion. An ordinance is actually a legislative act of the
executive but not the act of the legislature, and therefore, executive decision may be
challenged on the grounds of mala fides.27
While taking away such a power altogether might be detrimental for the country, there has to
a reasonable

27
12 MP Jain, Indian Constitution Law Vol I, 206-207.