2.6.10. Ordinance-Making Power

Article 123 of the Constitution empowers the President to promulgate ordinances when the Parliament is not in session and hence, it is not possible to enact laws in the Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.

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:

i. Parliament is not in session: The President can only promulgate an ordinance when either of the two Houses of Parliament is not in session.

ii. Immediate action is required: The President can promulgate an ordinance only when he is satisfied that there are circumstances that require taking ‘immediate action’. In Cooper case (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide. This means that the decision of the President to issue an ordinance can be questioned in a court on the ground that the President has prorogued one House or both Houses of Parliament deliberately with a view to promulgate an ordinance on a controversial subject, so as to bypass the parliamentary decision and thereby circumventing the authority of the Parliament.

iii. 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.

iv. Coextensive with the law-making powers of the Parliament: The ordinance-making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament. This has two implications:

a) An ordinance can be issued only on those subjects on which the Parliament can make laws.

b) An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights.


The President may withdraw an ordinance at any time. However, his power of ordinance- making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the Council of Ministers headed by the Prime Minister.

An ordinance may have retrospective effect and may modify or repeal any act of Parliament, or even another ordinance. It may also amend or alter a tax law, but can never be used to amend the Constitution.

The rules of Lok Sabha require that whenever a bill seeking to replace an ordinance is introduced in the House, a statement explaining the circumstances that had necessitated immediate legislation by ordinance should also be placed before the House.

The ordinance-making power of the President of India is rather unusual and not found in most of the democratic Constitutions of the world including that of USA and UK. This power has been given to the President to enable the Executive to deal with a situation that may suddenly and immediately arise when the Parliament is not in session.