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Home / IAS Preparation / Ordinance Making Power Of Executives In India

Ordinance Making Power of President and Governor | UPSC Notes

Last Updated on Aug 25, 2024
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The Ordinance making power of President and Governor is one of the important legislative powers vested on the executives by the Constitution of India. Ordinance making power refers to the power of the executives (President and Governor) to pass laws on urgent or unforeseen matters. Despite the fact that India follows the Trias Politica model i.e., separation of powers, there are several instances where the powers of the three institutions (Legislature, Executive, and Judiciary) overlap and one such power is the promulgation of the ordinance. This power of the President and Governor is subjected to certain conditions and limitations which will be discussed later in this article.

Let us discuss in detail the ordinance power of President and Governor in the following article. This is one of the important topics under Indian Polity and by covering this topic, it will be easy for the UPSC IAS aspirants in their Prelims as well as Mains examination.

GS Paper

General Studies Paper II

Topics for UPSC Prelims

Constitutional provisions (Articles 123 and 213), Powers of Governor, Powers of the President

Topics for UPSC Mains

Ordinance-making power as a legislative tool, Judicial review, Role in emergency governance and policy-making, Misuse of ordinance power

Ordinance Making Power of President

Article 123 of the Indian Constitution vests the President of India, the power to promulgate ordinance when either of the two houses of the Parliament is not in session. As mentioned earlier, this power of the President is subjected to a few limitations. They are as follows,

  • The ordinance-making power is available to the President only when either of the Houses of Parliament is not in session or when both the Houses are not in session.
  • According to Article 123(1), the President can promulgate an ordinance only when he is satisfied that the circumstances exist which render it necessary for him to take immediate action.
  • The ordinance enacted should not abridge or take away any of the fundamental rights enshrined in the Indian Constitution.
  • According to Article 123(2)(a), every ordinance introduced during the recess of the Parliament should be laid before both the Houses of Parliament when it reassembles. This article also states two circumstances where the ordinance will become ineffective.
    • If the ordinance is not approved by the Parliament, then it will cease to operate at the expiration of 6 weeks from the reassembly of Parliament.
    • If the ordinance is disapproved by the Parliament before the expiration of six weeks, then the ordinance will become ineffective. Under Article 123(2)(b), even the President can withdraw the ordinance at any time.
  • Either to introduce or withdraw the ordinance, the President can act only on the advice of the Prime Minister and his Council of Ministers. Thus, the ordinance making power of the President is not a discretionary one.
  • The ordinance making power of the President is coextensive with the legislative power of the Parliament in two ways,
    • The President can issue an ordinance only on the subjects on which Parliament can make legislation.
    • Similarly, an ordinance is subject to the same set of limitations as that of the Parliamentary act.
  • However, they differ with regard to the duration. Unlike Parliamentary laws, the laws promulgated as ordinances by the President are temporary in nature.

Study the Schedules of the Constitution of India from the linked article.

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Ordinance Making Power Of Governor

Article 213 of the Indian Constitution empowers the Governor of the State to promulgate ordinances when the State Legislative Assembly is not in session.

In the 6 states (Karnataka, Andhra Pradesh, Telangana, Maharashtra, Bihar and Uttar Pradesh) which have bi-cameral legislatures i.e, both State Legislative Assembly as well as State Legislative Council, the Governor can promulgate ordinance when either of the houses is not in session or when both the houses are not in session.

The ordinance making power of the Governor can be better understood by making a comparative study with the ordinance making power of the President.

Read about the Fundamental duties in India here.

Difference Between Ordinance Making Power of President and Governor

In the following table, the ordinance power of President and Governor are compared and contrasted.

Difference Between Ordinance Making Power of President and Governor

Ordinance Making Power of President (Article 123)

Ordinance Making Power of Governor (Article 213)

The President can promulgate an ordinance only when he is satisfied with the fact that it is necessary for him to take immediate action upon a specific issue.

The Governor can promulgate an ordinance only when he is satisfied with the fact that it is necessary for him to take immediate action upon a specific issue.

He can promulgate or withdraw any ordinance only on the advice of the Prime Minister and the Council of Ministers.

He can promulgate or withdraw any ordinance only on the advice of the Chief Minister and the Council of Ministers.

He can issue ordinances only on the subjects on which the Parliament can pass legislation. Similarly, the ordinance made by him is subjected to the limitations that prevail for the act of the Parliament.

He can issue ordinances only on the subjects on which the State Legislature can pass legislation. Similarly, the ordinance made by him is subjected to the limitations that prevail for the act of the State Legislature.

The President has the right to withdraw an ordinance at any time.

The Governor can also withdraw an ordinance at any time.

The ordinance promulgated by the President has the same force and effect as that of the Parliamentary law.

The ordinance promulgated by the Governor has the same force and effect as that of the act introduced by the State Legislature.

Once, both the Houses of Parliament reassemble, the President must table the ordinance before them. The Parliament can either accept the ordinance and make it a permanent law or disapprove of the ordinance.

Once the State Legislative Assembly (as well as State Legislative Council in case of the bi-cameral legislature) reassembles, the Governor must table the ordinance before them. The State Legislature can either accept the ordinance and make it a permanent law or disapprove the ordinance.

If an ordinance is neither accepted nor disapproved/withdrawn, it will cease to operate on the expiry of six weeks from the reassembly of the Parliament.

If an ordinance is neither accepted nor disapproved/withdrawn, it will cease to operate on the expiry of six weeks from the reassembly of the State Legislature.

He is not entitled to instructions while promulgating an ordinance.

Without instruction from the President, Governor cannot issue ordinances on the following cases:

If it is necessary for the Governor to reserve a certain bill for the consideration of the President.

If the bill contains the provisions which would require previous sanction of the President for its introduction in the State Legislature.

If an act of the State Legislature containing the same provisions would have been invalid without receiving the President’s assent.

Learn more about the separation of powers!

Analysis of the Ordinance Making Power of President and Governor

The ordinance making power of the President and Governors is also one of the controversial powers enshrined in the Constitution of India. There have been several debates and arguments on various fronts of the ordinance making power such as judicial review of this power of executives and the necessity for ‘immediate action’ while promulgating the ordinance.

Some of the major issues pertaining to the ordinance making power are discussed below.

  • Though the ordinance should be promulgated only during an emergency situation and as a last resort, it is frequently used by executives. During Indira Gandhi’s rule i.e between 1970 to 1977, around 77 ordinances were passed. Though the number was declining thereafter, according to the report by PRS Legislative Research and Lok Sabha secretariat, 61 ordinances were issued by the UPA government between 2004 to 2014 and the current NDA government has surpassed the previous government and has issued 76 ordinances since 2014. It is vivid that the Government is using ordinance routes to make laws, particularly controversial ones.
  • Another key issue is the re-promulgation of the ordinance. Since the ordinance issued becomes redundant after a while, the provisions are reintroduced by promulgating another ordinance similar to the previous one. In 2017, the Supreme Court of India ruled that the re-promulgation of an ordinance is an unconstitutional act.

Learn more about Veto Power!

Landmark Judgements Related to the Ordinance Making Powers of the President and the Governors

Some of the major landmark judgements related to the Ordinance Making Powers of the President and the Governors include the following:

  • RC Cooper vs Union of India (1970) – In this case, the Supreme Court of India ruled that if an ordinance passed under certain circumstances which do not require immediate action, then such ordinance can be questioned in the court of law.

Note: However, in contrast to this judgement, the 44th Constitutional Amendment Act asserted that the satisfaction of the President in issuing ordinance will be final and cannot be questioned for its constitutionality in a court of law.
  • D.C.Wadhwa and Ors. vs State of Bihar and Ors. (1987) – In this landmark case, it was ruled that the legislative power of the executives to promulgate ordinances should not be employed for corrupt purposes.
  • Krishna Kumar Singh vs State of Bihar (2017) – In this case, the Apex court held that the re-promulgation of an ordinance is a fraud on the Constitution and also ruled that the satisfaction of the President and Governor while issuing an ordinance is subject to judicial review.

Key Takeaways for UPSC Aspirants

  • Constitutional Basis: Article 123 of the Indian Constitution grants the President the power to promulgate ordinances, while Article 213 grants similar power to the Governor of a state. These ordinances have the same force as laws passed by the legislature.
  • Conditions for Promulgation: An ordinance can be issued when both Houses of Parliament (for the President) or the state Legislative Assembly (and Legislative Council, if applicable, for the Governor) are not in session, and immediate action is required.
  • Duration and Limits: An ordinance must be approved by the Parliament or state legislature within six weeks of reassembly. If not approved, it ceases to operate. Ordinances cannot be used to amend the Constitution.
  • Scope and Use: Ordinances are typically used for urgent matters requiring immediate legislative action, but their use has been controversial when perceived as bypassing the legislative process.
  • Judicial Oversight: The Supreme Court of India has held that the President's or Governor's satisfaction to issue an ordinance is subject to judicial review. It should not be used as a substitute for the regular legislative process.
  • Examples of Notable Ordinances: The promulgation of ordinances has been seen in various contexts, from economic reforms to legal and administrative changes. Examples include the promulgation of the Nationalization Ordinance and ordinances related to economic liberalization.
  • Political Implications: The use of ordinances often reflects the dynamics between the executive and legislature. Frequent use may lead to criticisms of overreach by the executive branch.
  • Reforms and Recommendations: Recommendations have been made to ensure more stringent conditions and checks for the issuance of ordinances, promoting transparency and accountability.

We hope that the above article proves to be useful for UPSC aspirants. You can further strengthen your preparation by availing of the tests, quizzes, live coaching sessions, NCERT Notes and much more curated by the experts, from the Testbook app. Download the Testbook App Now!

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Ordinance Making Power Of President And Governor UPSC FAQs

The President of India and the Governors of states in India possess the power to issue ordinances. These are temporary laws that have the same force and effect as an Act of the Parliament or a state legislature, respectively.

The Governor acts as the ceremonial head of the state and exercises executive, legislative, and discretionary powers. The President is the head of the country and exercises executive, legislative, and emergency powers.

Yes, the ordinance power of the Governor is discretionary. This means the Governor can issue an ordinance when the state legislature is not in session and if the Governor is satisfied that circumstances exist that require immediate action.

An ordinance passed by the President is a legislative measure that has the force of law but is issued by the President when Parliament is not in session and if the President is satisfied that circumstances exist that necessitate immediate action.

The ordinance making power of the Governor is provided under Article 213 of the Indian Constitution.

The ordinance issued by the Governor must be approved by the respective state legislature within a certain period of time. If it is not approved, the ordinance ceases to operate.
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