Sunday, 23 January 2022

Ordinance making power U/a 123 and 223


BY: Bishrant Khatiwada, SLS ,Pune, Email:

An ordinance is a legislation that the President of India enacts only while the Indian parliament is not in session. On the suggestion of the union cabinet, the president signs an ordinance. Similarly, in a unicameral legislature, the governor can only begin ordinances when the legislative assembly is not in session, and in a bicameral legislature, the governor can only introduce ordinances when both the legislative assembly and the legislative council are not in session. 


The President's ability to issue ordinances is covered in Article 123. This is one of the several legislative authorities that the president possesses. When either of the two Houses of Parliament is not in session, Article 123 of the Indian Constitution gives the President the right to publish ordinances. As a result, the ordinances will not be able to be passed in Parliament. According to PanditH NKunzru (who was part in the drafting of the Indian Constitution), the primary rationale for giving the administration the ability to promulgate ordinances was "to cope with circumstances when an emergency in the country needed immediate action."

In case of T. venkata Reddy V. state of AP, the supreme court held that since the presidential ordinance making power which is listed in article 123 and 213 of Indian constitution is of a legislative character which can be seen as a sort of exercising the legislative power, so it cannot be questioned on grounds of motives or non-application of mind or on grounds of its propriety, expediency and necessity.

The exercise of ordinance can be challenged, under such circumstances which has established the president that the president has not acted bona-fide. But in case one house or both of the houses of the parliament are prolonged deliberately with a certain view to enable the president of India to promulgate ordinance, the exercise of the power by the president cannot be called fraudulent or mala-fide. 

An ordinance must be transformed into law within 42 days after the start of the Parliament session. Only three times may an ordinance be re-promulgated. When the state legislative assembly is not in session, the governor of the state can promulgate ordinances under Article 213 of the Indian Constitution. The ability of the President and Governor to issue ordinances has been the subject of several critical arguments. Significant problems have been raised regarding judicial scrutiny of the executive's ordinance-making powers; the need for 'rapid action' when promulgating an ordinance; and the executive's grant of ordinance-making powers, given the concept of separation of powers.

The ordinance making power under the constitution of India enlisted on Article 123, is subject to some restrictions as the power of parliament to make laws, thus the president of India can make ordinance on some maters enlisted on Schedule VII of the Constitution. 

In case of A.K. Roy V. Union of Inia, the power of president to issue an ordinance under article 123 was questioned with regards to national security. The SC held that the judicial review of the president’s satisfaction regarding the necessity to issue an ordinance is not totally excluded. That satisfaction of the president of india cannot be regarded as a purely political question and its judicial review. Ordinances that are regularly published and reissued, on the other hand, contravene the spirit of the Constitution and lead to an undesirable 'ordinance raj.' 

I believe that enacting ordinances at times other than emergencies is not a healthy trend, based on my understanding of the subject. The opposition must show maturity and refrain from disrupting Parliamentary processes. Parliamentary time should be used wisely to examine and debate important issues and determine the fate of bills.

An ordinance can be challenged on following grounds:

  1. If the ordinance passed contains colourable legislation

  2. If the ordinance contravenes with any of the fundamental rights mentioned in the constitution of India

  3. If it violated substantive provisions of the constitution such as Article 301 of Indian Constitution

  4. If the ordinance passed id retrospectively unconstitutional

Ordinances, on the other hand, are framed by the executive branch, which is described as a single, united institution. The President is the leader of the executive branch, which issues ordinances based on the recommendation of the ministerial council. The 'necessity to take prompt action' is the most critical prerequisite for the ordinances to be promulgated. When there is a genuine requirement or urgency to promulgate the Ordinances, there will be no problem in verifying the President's pleasure.

In a famous case related to ordinance, D.C. Wadha V. State of Bihar wherein misuse of powers under Article 123 and 213, it was observed that, "The ability to enact an ordinance is intended to address a unique issue; it should not be used to further an individual's political goals." Though it is against democratic norms for an administration to write laws, the President is given this authority to deal with emergencies, thus it should be constrained at some point."

The power of judicial review of ordinances was revisited in 1998 in the case of Krishna Kumar Singh v State of Bihar, in which the Supreme Court struck down a number of ordinances on the grounds that no particular basis for the exercise of the President's ordinance-making power had been demonstrated. "There was also no rationale presented for promulgating one law after another," it added.

Most of the time, the power to make ordinances is a contentious issue that is debated. It attempts to upset the balance of executive and legislative powers by introducing an element of arbitrariness into the Constitutional System and undermining the rule of law. When an Executive body wields such ordinance-making authority, it indicates a contempt for the legislative. Only a few grounds have been presented thus far to contest the Ordinances' validity: (a.) directly contravenes a constitutional requirement; (b.) the president has exceeded his constitutional authority; and (c.) the president has made a colourable use of his authority.

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