Ordinance-Making Power

Notes

Art. 123 empowers the President to promulgate Ordinances when Parliament is not in session (when either House is not in session), if satisfied that circumstances exist that make immediate action necessary. The Governor has the same power for the State under Art. 213. An Ordinance is an emergency substitute for legislation.

Features

Has the same force and effect as an Act of Parliament.
Must be laid before both Houses when Parliament reassembles; it ceases to operate at the expiry of six weeks from reassembly, or earlier if both Houses pass resolutions disapproving it. Since Parliament's sessions can be at most six months apart, the maximum life is about six months and six weeks.
The President may withdraw it at any time.
Can be used only on subjects on which Parliament can make laws. It is subject to the same constitutional limits: it cannot abridge Fundamental Rights, and cannot amend the Constitution.
Can have retrospective effect, and can amend or repeal an Act of Parliament or another Ordinance.
The President acts on the aid and advice of the Council of Ministers.
Governor's Ordinances (Art. 213): need the President's prior instruction in cases where the Bill would require the President's previous sanction or reservation.

Judicial review

The 38th Amendment (1975) made the President's satisfaction final and non-justiciable; the 44th Amendment (1978) removed this bar.
R.C. Cooper v Union of India (1970): the satisfaction of the President can be challenged on the ground of mala fides.
A.K. Roy v Union of India (1982): the satisfaction is justiciable.
D.C. Wadhwa v State of Bihar (1987): repeated re-promulgation of Ordinances without placing them before the legislature is a fraud on the Constitution; the State had re-promulgated hundreds of Ordinances over years.
Krishna Kumar Singh v State of Bihar (2017): a seven-judge bench held that re-promulgation is a constitutional fraud; the legislature's oversight is a constitutional requirement, and the Ordinance must be laid before the House; the promulgating authority's satisfaction is open to judicial review. The Court also held that rights created by an Ordinance do not automatically vanish when it lapses.

Key Points

Art. 123 (President), Art. 213 (Governor).
Not in session (either House); laid before Parliament; lapses six weeks after reassembly.
Same force as an Act, but cannot amend the Constitution or abridge Fundamental Rights.
Re-promulgation is a fraud on the Constitution (D.C. Wadhwa, Krishna Kumar Singh).
44th Amendment restored judicial review.

MCQs

Q1. The President's ordinance-making power is in: (a) Art. 111 (b) Art. 123 (c) Art. 143 (d) Art. 213 Ans: (b). Art. 213 is for Governors.

Q2. An Ordinance ceases to operate: (a) Six months after promulgation (b) Six weeks after reassembly of Parliament (c) One year after promulgation (d) Immediately on Parliament's reassembly Ans: (b). Unless disapproved earlier.

Q3. Re-promulgation of ordinances was held to be a "fraud on the Constitution" in: (a) D.C. Wadhwa v State of Bihar (b) Minerva Mills (c) Golaknath (d) Maneka Gandhi Ans: (a). 1987; reaffirmed in Krishna Kumar Singh (2017).