Ordinances in India

Content

• Why in News?
• Introduction
• Constitutional Basis
• Nature and Legal Status
• Conditions for Promulgation
• Legislative Procedure After Promulgation
• Scope and Limitations 
• Principle of Separation of Powers
• Recent Constitutional Debate
• Concerns 
• Way Forward
• Conclusion

Why in News?

The ordinance-making power has recently come under constitutional scrutiny after the President promulgated an Ordinance increasing the sanctioned strength of the Supreme Court from 34 to 38 judges. The subsequent acceptance of appointments by the Supreme Court Collegium has triggered an important debate regarding the limits of the ordinance-making power, judicial independence, security of tenure, and the separation of powers. 

Constitutional experts have questioned whether judicial appointments to posts created only through a temporary ordinance are consistent with the constitutional scheme and the doctrine of judicial independence.

Introduction

The Constitution of India establishes Parliament as the primary law-making body. However, recognising that situations requiring immediate legislative action may arise when Parliament is not in session, the Constitution confers an extraordinary legislative power upon the Executive through the ordinance-making mechanism.

An Ordinance is a temporary law promulgated by the President under Article 123 when Parliament is not in session and immediate action is considered necessary. Although an ordinance possesses the same force and effect as an Act of Parliament, it remains a temporary legislative measure subject to parliamentary approval. Therefore, the ordinance-making power is intended to address exceptional situations rather than serve as an alternative method of ordinary legislation.

Over the years, the Supreme Court has repeatedly emphasized that this extraordinary power must be exercised with constitutional restraint and cannot be used to bypass the legislative process.

Constitutional Basis of Ordinance-Making Power

The ordinance-making power is provided under Article 123 of the Constitution. It authorises the President to promulgate ordinances when both Houses of Parliament are not in session and when circumstances exist that require immediate legislative intervention.

The President exercises this power on the aid and advice of the Council of Ministers under Article 74, implying that the real authority lies with the elected executive rather than the President personally.

A similar power is conferred upon the Governor under Article 213, enabling the promulgation of ordinances when the State Legislature is not in session, subject to certain constitutional limitations.

Thus, the ordinance-making power reflects the principle that governance should not come to a standstill merely because the legislature is temporarily unavailable.

Nature and Legal Status of an Ordinance

An ordinance is not merely an executive order; it is a law having the same force and effect as an Act passed by Parliament. During its operation, all rights, liabilities and legal consequences flowing from an ordinance are equivalent to those arising from ordinary legislation.

Nevertheless, unlike an Act of Parliament, an ordinance is inherently temporary. It derives its legitimacy from constitutional necessity rather than from legislative deliberation. Consequently, Parliament retains complete authority either to approve, modify, replace or reject an ordinance after reassembling.

The ordinance-making power is therefore an emergency legislative mechanism rather than a substitute for parliamentary law-making.

Conditions for Promulgation of an Ordinance

The Constitution imposes two essential conditions before an ordinance may be issued.

First, both Houses of Parliament must not be in session. If even one House is sitting, the President cannot ordinarily promulgate an ordinance because Parliament remains capable of exercising its legislative functions.

Secondly, the President must be satisfied that circumstances exist requiring immediate action. Although the President's satisfaction is based upon the advice of the Council of Ministers, it is not completely immune from judicial review where mala fide exercise of power or constitutional abuse is alleged.

Thus, the constitutional requirement is not merely the absence of Parliament but also the existence of genuine legislative urgency.

Legislative Procedure After Promulgation

Once promulgated, an ordinance must be placed before both Houses of Parliament after they reassemble. Parliament may approve the ordinance by passing legislation replacing it, modify its provisions through an amending law, or reject it altogether.

If no legislative action is taken, the ordinance automatically ceases to operate six weeks after the reassembly of Parliament. The President also possesses the power to withdraw an ordinance at any time before its expiry.

Therefore, the Constitution ensures that ordinances remain subject to democratic legislative oversight.

Duration of an Ordinance

An ordinance comes into force immediately upon promulgation and continues until one of the following situations occurs.

It may be replaced by an Act of Parliament, withdrawn by the President, disapproved by Parliament, or lapse automatically six weeks after Parliament reconvenes if no approving legislation is enacted.

Since the Constitution permits Parliament to remain prorogued for a maximum of six months, the practical maximum life of an ordinance is generally about six months and six weeks, unless replaced by legislation earlier.

Scope and Limitations of the Ordinance-Making Power

The legislative competence of an ordinance is generally coextensive with that of Parliament. Consequently, an ordinance may be issued on any subject within Parliament's legislative jurisdiction under the Union List or Concurrent List.

However, the ordinance-making power cannot be exercised in violation of constitutional limitations. An ordinance cannot amend provisions forming part of the Constitution except through the procedure prescribed under Article 368. Similarly, it cannot override Fundamental Rights or violate the Basic Structure Doctrine.

Moreover, constitutional conventions and judicial precedents require that ordinances should be reserved only for exceptional situations demanding immediate legislative intervention.

Judicial Interpretation of Ordinance-Making Power

The Supreme Court has played a crucial role in preventing misuse of the ordinance-making power by evolving constitutional safeguards through several landmark judgments.

R.C. Cooper v. Union of India (1970)

The Court recognised that an ordinance possesses the same force as an Act of Parliament and is therefore subject to judicial review on constitutional grounds.

D.C. Wadhwa v. State of Bihar (1986)

This landmark judgment arose from Bihar's repeated practice of re-promulgating ordinances without placing them before the legislature. The Supreme Court strongly condemned this practice, describing repeated re-promulgation as a "fraud on the Constitution."

The Court held that ordinance-making cannot become a substitute for the normal legislative process because such a practice undermines parliamentary supremacy and democratic accountability.

Krishna Kumar Singh v. State of Bihar (2017)

A seven-judge Constitution Bench reaffirmed the principles laid down in D.C. Wadhwa and held that the ordinance-making power is an exceptional constitutional mechanism rather than an independent source of legislation.

The Court further observed that satisfaction under Article 123 is subject to judicial review and that ordinances cannot ordinarily create enduring legal consequences if they lapse without legislative approval.

The judgment significantly strengthened constitutional limits on executive law-making.

Ordinance-Making and the Principle of Separation of Powers

The Constitution adopts a system of functional separation among the Legislature, Executive and Judiciary. Since law-making primarily belongs to Parliament, the ordinance-making power constitutes a limited constitutional exception.

Its purpose is to ensure continuity of governance during parliamentary recess and not to transfer legislative authority permanently to the Executive.

Frequent or politically motivated use of ordinances may disturb the constitutional balance by allowing the Executive to bypass legislative debate, committee scrutiny and democratic deliberation.

Hence, judicial decisions consistently emphasise that ordinances should remain exceptional rather than routine instruments of governance.

Recent Constitutional Debate: Ordinance Increasing Supreme Court Strength

In May 2026, the President promulgated an ordinance increasing the sanctioned strength of the Supreme Court from 34 to 38 judges. Subsequently, appointments were made to these newly created positions before Parliament enacted a permanent law.

This development generated significant constitutional debate because the newly created judicial posts depend upon a temporary legislative instrument. If Parliament fails to replace the ordinance with an Act, the additional posts may cease to exist after the prescribed constitutional period.

Consequently, constitutional scholars have questioned whether judges appointed to such temporary posts enjoy the same degree of security of tenure, which forms one of the essential guarantees of judicial independence.

Concerns Regarding Misuse of Ordinances

Despite its constitutional utility, the ordinance-making power has frequently attracted criticism.

One major concern is the possibility of the Executive bypassing Parliament and avoiding legislative scrutiny. Repeated promulgation of ordinances without genuine urgency weakens parliamentary democracy and undermines the deliberative character of legislation.

Another concern relates to democratic accountability. Since ordinances come into force without debate in Parliament, important policy decisions may temporarily operate without adequate public discussion.

Frequent reliance upon ordinances also raises questions regarding constitutional morality and respect for legislative institutions.

Way Forward

The ordinance-making power should continue to remain an exceptional constitutional instrument rather than a routine legislative practice. Governments must exercise this power only when immediate circumstances genuinely prevent waiting for Parliament to reconvene.

Judicial review should continue to ensure that ordinances are issued in good faith and only for legitimate constitutional purposes. Parliament, on its part, should promptly deliberate upon ordinances after reassembly so that temporary executive legislation does not continue without democratic scrutiny.

Where matters concern constitutional institutions such as the judiciary, greater legislative consultation and timely enactment of permanent statutes would reinforce public confidence in constitutional governance.

Ultimately, adherence to constitutional morality demands that executive convenience should never replace parliamentary deliberation.

Conclusion

The ordinance-making power reflects the Constitution's pragmatic recognition that governance sometimes requires immediate legislative action. However, because ordinances temporarily substitute the ordinary law-making process, they must remain confined to exceptional situations.

The Supreme Court's jurisprudence has consistently reaffirmed that ordinances cannot become parallel legislation or instruments for avoiding parliamentary accountability. Recent debates concerning judicial appointments under an ordinance have further highlighted the delicate relationship between executive necessity, legislative supremacy and judicial independence.

A mature constitutional democracy requires that the ordinance-making power be exercised with restraint, transparency and fidelity to constitutional principles, thereby preserving both effective governance and the supremacy of Parliament.