Ordinance-Making Power In India - Striking A Balance Between Necessity And Overreach

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:42:20.698216+00:00

Updated: 2026-08-26T17:10:14.465+00:00

ORDINANCE-MAKING POWER IN INDIA: STRIKING A

BALANCE BETWEEN NECESSITY AND OVERREACH

Anandita Uppal & Anshi Gandhi, Jindal Global Law School

ABSTRACT

The ordinance-making power under Articles 123 and 213 of the Indian Constitution allows the executive to enact laws in urgent situations when the legislature is not in session. However, the improper use of this power, particularly through re-promulgation, raises serious constitutional concerns. This paper examines the historical context and intent behind this power, analysing key judicial rulings that define the limits of executive discretion and the role of judicial review. While ordinance-making is necessary, the study asserts that its use must be tightly regulated to maintain the constitutional balance between the executive and the legislature. Introduction The ordinance-making power, enshrined in Articles 1231 and 2132 of the Indian Constitution, is designed as a mechanism for the executive branch to enact temporary laws in urgent situations when the legislature is not in session.

Originally intended as an exceptional measure, this power has become a focal point for debate regarding its application and the implications for the fundamental structure of Indian democracy. As the frequency of ordinances and their re-promulgation has increased, concerns have emerged over whether this power has deviated from its constitutional intent, leading to potential executive overreach and a diminishment of parliamentary supremacy. Article 123 allows the President to promulgate ordinances when Parliament is not in session and when immediate action is necessary, as determined by the Council of Ministers. Similarly, Article 213 permits Governors to issue ordinances under comparable conditions when state legislatures are not in session. Both provisions include safeguards to prevent abuse, notably the

1 The Constitution of India, art 123.

2 The Constitution of India, art 213.

requirement that ordinances must be approved by the respective legislature within a limited timeframe. At its core, the ordinance-making power represents a delicate balance between the necessity for swift legislative action in times of crisis and the imperative of maintaining a functioning democracy characterized by checks and balances. The framers of the Constitution envisaged this power as a safeguard against legislative inaction, allowing the executive to respond promptly to pressing issues. However, the rising trend of issuing ordinances, often just prior to parliamentary sessions, raises fundamental questions about the preservation of legislative authority and the principle of separation of powers.

The phenomenon dubbed "Ordinance Raj" encapsulates concerns that the executive branch may be using this power not merely in extraordinary circumstances, but as a regular legislative tool, undermining the legislature's role in lawmaking. This paper critically examines the extent to which the use of ordinance-making powers in India has strayed from the constitutional framework that originally envisioned it as an exceptional measure. It also explores the implications of re-promulgation practices for the principle of separation of powers, questioning whether judicial oversight and constitutional safeguards can be reinforced to prevent executive overreach. Ultimately, this paper aims to contribute to the discourse on the balance between effective governance and the safeguarding of constitutional principles, emphasizing the need for vigilance in upholding democratic integrity.

Historical Evolution and Legislative Intent of Ordinance-making Power The ordinance-making power, as a legal mechanism, has its roots deeply embedded in the colonial governance of India, tracing back to the British legal and political systems. Traditionally associated with the executive branch of government, this power has evolved from its origins in the proclamations of English monarchs to its formalization in colonial Indian statutes, and ultimately to its enshrinement in the Indian Constitution. The development of this power reflects both a historical necessity and legislative caution, aimed at balancing executive authority with democratic safeguards. The evolution of ordinance-making power in England began with monarchs’ proclamations, initially viewed as legitimate governance tools.

However, the Case of Proclamations established that monarchs could not alter law through proclamations, ultimately affirming

parliamentary supremacy in legislative matters. By the late seventeenth century, ordinances became subordinate to statutory law, employed only for specific regulatory purposes during emergencies and subject to legislative oversight, influencing ordinance-making practices in colonial India. The ordinance-making power first took legislative form in India under British colonial rule through the Indian Councils Act of 1861. Section 233 of this Act empowered the Governor- General to issue ordinances in cases of emergency, lapsing after six months unless approved by the legislature. The Government of India Act of 1915 continued this tradition, re-enacting the ordinance-making power under Section 72. 4 Thus, the ordinance-making power became a critical tool for the colonial administration to maintain order and protect British interests in India.

The Government of India Act, 1935 formed the legislative bedrock for India's governance until independence. Sections 42,5 436 and 447 of the Act conferred upon the Governor-General the authority to issue ordinances during the recess of the federal legislature, with a six-month time limit, ensuring that these ordinances would only be temporary measures. With the drafting of the Indian Constitution, the framers faced the challenge of whether to retain the ordinance-making power within the new democratic framework. B. N. Rau, the constitutional advisor, argued that while ordinances were heavily criticized under British rule, they were necessary for addressing unforeseen emergencies and assured the assembly that the President would act on the advice of ministers responsible to Parliament, thus mitigating the risk of executive overreach.

8 The debates within the Constituent Assembly highlighted the apprehensions surrounding this power. Figures like K. T. Shah and H. V. Kamath expressed concerns that the ordinance-making provision might undermine parliamentary supremacy and the rule of law. 9 However, Dr. B. R. Ambedkar justified the provision by stating, "The emergency must be dealt with, and it seems

3 The Indian Councils Act 1861, s 23.

4 The Government of India Act 1951, s 72.

5 The Government of India Act 1951, s 42.

6 The Government of India Act 1951, s 43.

7 The Government of India Act 1951, s 44.

8 BN Rau, The Framing of India's Constitution (Universal Law Publishing, 2006)

9 Assembly Debates, 'Constitution of India' (Constitutionofindia.net, 2021)

accessed 07 October 2024

to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with the particular situation because it cannot resort to the ordinary process of law because.... the legislation is not in session. ” 10 The legislative intent behind Articles 123 and 213 remained clear, the ordinance-making power was to be an exceptional measure, not a rule. It was intended to allow the executive to respond to urgent situations while ensuring that ordinances remained temporary, subject to parliamentary approval within six weeks of reassembly. The framers sought to strike a balance between enabling swift action in times of crisis and preserving the legislature’s role as the primary lawmaking body.

As the ordinance-making power continues to be a subject of judicial review, its use remains a delicate balance between executive expediency and legislative supremacy. Judicial Review The judicial oversight of the ordinance-making power under Articles 123 and 213 of the Constitution of India plays a pivotal role in maintaining the balance of power between the legislative and executive branches of government. The Supreme Court has consistently underscored the need for judicial oversight to prevent the misuse of this extraordinary legislative power, which, although vital in times of emergency, must not serve as a substitute for regular legislative processes. In R. C. Cooper v.

Union of India,11 the Supreme Court examined the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 and held that the conditions justifying an ordinance's promulgation are subject to judicial review. The ruling emphasized that the ordinance-making power is constitutionally restricted to urgent circumstances requiring immediate action, and such ordinances are subject to judicial scrutiny. Further, in A. K. Roy v. Union of India,12 the Supreme Court asserted that the ordinance-making power of the President is indeed subject to judicial review. The court emphasized that the President's legislative power, while significant, does not absolve it from the principles of accountability inherent in a democratic framework. However, the court noted that such review

10 B Shiva Rao, The Framing of India's Constitution, vol. 2 (2nd ed., 2006) 477.

11 Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India (1970) 1 SCC 248

12 A.K. Roy v. Union of India (1982) 1 SCC 271

would occur on substantial grounds rather than trivial objections, establishing a threshold for judicial intervention that respects the executive's discretion while upholding legislative supremacy. Similarly, in S. K. Sugar Ltd. v. State of Bihar,13 the Court stated that the Governor's satisfaction regarding the necessity for an ordinance must be based on tangible criteria, ensuring judicial oversight to prevent arbitrary use of legislative powers by the executive. The judiciary has also articulated the principles guiding the ordinance-making power, particularly in the landmark judgment of D. C. Wadhwa v. State of Bihar,14 where the court scrutinized the practice of re-promulgating ordinances without legislative approval. The Supreme Court condemned this practice as unconstitutional, labeling it a "fraud upon the Constitution.

" The court underscored the importance of adhering to legislative processes and asserted that the continuous re-promulgation of ordinances undermined the fundamental structure of democracy by circumventing the role of the legislature. Such practices, the court argued, transformed the executive's role into a legislative authority, thus subverting the principles of checks and balances enshrined in the Constitution. Despite articulating the constitutional doctrine, the Constitution Bench concluded merely with the hope that the practice of lawmaking through re-promulgated ordinances would not become the norm. In Krishna Kumar Singh v. State of Bihar,15 the Supreme Court reaffirmed its stance against the arbitrary use of ordinance-making power. The court held that the failure to present ordinances before the legislature for approval constituted a violation of constitutional mandates.

This ruling reiterated that while ordinances may serve as a temporary legislative measure in urgent situations, they must ultimately be subject to legislative scrutiny to preserve the integrity of the democratic process. Over the years, the courts have drawn a clear distinction between legitimate uses of ordinancemaking power in response to genuine emergencies and instances of overreach that undermine parliamentary sovereignty. While the President's satisfaction regarding the necessity of an ordinance may initially seem beyond the purview of judicial inquiry, the evolving jurisprudence indicates that such satisfaction must be grounded in objective criteria, warranting scrutiny by the judiciary when there are indications of mala fides or colorable exercise of power. This

13 S.K.G. Sugar Ltd. v. State of Bihar (1974) 4 SCC 827

14 D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378

15 Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1

judicial oversight is vital not only for maintaining the integrity of the legislative process but also for upholding the rule of law in a functioning democracy. Ordinances by the President or Governor: Legislative Acts or Executive Powers? The A. K. Roy v. Union of India16 addressed whether the power to issue ordinances under Articles 123 and 213 is legislative or executive. The petitioner contended that the creation of ordinances threatens citizens' rights because they are an executive power disguising itself as the legislative branch. The Court, however, dismissed this argument, emphasizing that ordinance-making authority is legislative, as indicated by its location under the Constitution's "Legislative Powers" section.

17 Ordinances, per Article 123(2), hold the same force as parliamentary acts and Article 13(3) classifies ordinances as "law," subject to the same constitutional scrutiny. The rejection of K. T. Shah's proposed amendment demonstrated the framers' intent and validated the President's legislative ability to make ordinances. While ordinances may have the same legal effect as parliamentary acts, M. P. Jain18 and others argue that they remain an executive act, not subject to the same democratic oversight as parliamentary law-making, and their re-promulgation without legislative approval undermines the legislative process. Thus, ordinances are legislative acts of the executive but can be challenged if issued with mala fide intentions.

Problems Associated with Ordinance-making Despite the constitutional validity of Articles 123 & 213, debates persist regarding its implications, leading to the phenomenon known as 'Ordinance Raj'. The challenge with ordinance-making resides in conventional practice, the President does not have legislative discretion only promulgates ordinances; it is the Council of Ministers that assesses the necessity of an ordinance19. In furtherance of this argument, the Constitution does not effectively restrict the number of Ordinances that could get issued. The President is empowered to issue an infinite number of

16 A.K. Roy v. Union of India (1982) 1 SCC 271

17 Supra note 2; p. 719

18 MP Jain, Indian Constitution Law Vol I 206-207 (Wadhwa 5 ed. 2003) (1962).

19 Shubhankar Dam, Making Parliament Irrelevant: A Postcard from India, The Theory and Practice of Legislation 65, 66 (2016).

Ordinances, contingent upon 2 conditions: A House of Parliament is not in session, & there exists an urgent urgency for immediate action. The issue of whether re-promulgation of Ordinances is legally permissible and ethically sound is one that will be examined in a later section. Nonetheless, it is frequently observed that the government resorts to re-promulgating Ordinances, typically serving its interests. Article 123 undermines the Parliament's relevance, while reconsideration makes it entirely obsolete. 20 Abuse of ordinance-making powers could be attributed to subsequent judicial interpretations of the relevant provisions and inherent flaws in the constitutional articles conferring this authority. These provisions fail to address several key issues, thereby creating broader avenues for potential misuse.

This results in a situation frequently referred to as "Ordinance Raj," when the executive, unable to enact legislation through the established parliamentary process, appropriates the legislature's role by promulgating ordinances. This results in a continuation of the ordinance for a long period, within which any law for the subject matter could easily be made by the proper body: the legislature. This is also against the intention of the makers of the Constitution 21. Additionally, we see that this system of ordinances leads to a derailment from the integral aspects which also form the basic structure of our constitution such as the system of check and balances. We say so because Re-promulgation serves as a frequent method for circumventing the constitutional requirement that ordinances must be presented before Parliament and lapse after six weeks if not approved.

This practice undermines the effectiveness of the checks and balances system envisaged by the framers of the Constitution. Constitutional Legitimacy of Re-promulgation of Ordinances Re-promulgation is a practice wherein ordinances were re-enacted without being placed before the Legislature, emerged as a significant trend in various legislatures. The judiciary referred to this practice as an "Ordinance Raj" and a constitutional subversion. However, it was held that the Governor’s satisfaction in issuing such ordinances could not be subject to judicial review. A prevailing trend involved the re-promulgation of ordinances with identical provisions after

20 Ibid.

21 "Ordinance making is by itself an unusual, extraordinary and undesirable power; it should be qualified by a maximum period being qualified for its life." –K. T. Shah in Constituent Assembly Debates, Vol. VIII (8.89.113), available at http://cadindia.clpr.org.in/constitution-assembly-debates/volume/8/1949-05-23

the Legislature's session was prorogued, despite the ordinances having lapsed. "Repromulgation constitutes a constitutional fraud and undermines democratic legislative procedures, particularly when the government consistently evades presenting ordinances to the legislature. " 22 It is observed in the case of D. C. Wadhwa v. State of Bihar,23 The Supreme Court ruled that the re-promulgation of ordinances is illegal as well as constitutes a breach of the Constitution. However, it instituted a concerning exemption, signifying that if the government fails to offer with and implement a Bill to convert an ordinance into law, re-promulgation would be deemed valid. In effect, this allows re-promulgation to be justified in situations where the legislature is preoccupied or the session is too brief to consider the ordinance.

The blatant misuse of this exception resulted in a series of ordinances being re-promulgated, following the precedent set by the D. C. Wadhwa judgment. Gyanendra Kumar v. Union of India 24 instance, executive successfully justified 10 re-promulgations by stating that the Bills offered could not have been passed during the parliamentary session owing to critical and urgent legislative considerations, asserting that time remained limited. The exceptions established in the DC Wadhwa case have faced criticism because it is ultimately at the legislature's discretion to extend the session in response to emergencies, thereby calling into question the necessity of such an exception. Furthermore, re-promulgation subverts the notion of separation of powers. Krishna Kumar Singh v.

State of Bihar 25 sought to address challenges that re-promulgation presents to the supremacy of Parliament in legislative processes. The Supreme Court in this instance, affirmed Parliamentary primacy & underscored the notion that 'ordinances are intended solely for extraordinary circumstances' 26. The Hon’ble Court in this landmark case clarified key constitutional issues surrounding the repromulgation of ordinances. Upon careful consideration, it was determined that the legitimacy of an ordinance is amenable to judicial scrutiny, so enabling courts to evaluate the President's or Governor's justification for issuing an ordinance, which must be grounded in authentic 22 Samanwaya Rautray, 'Repromulgation of ordinances "fraud" on the Constitution: SC' (Economic Times, 3 January 2017)

23 D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378.

24 Gyanendra Kumar v. Union of India AIR (1997) Delhi 58.

25 Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1

26 “Gautam Bhatia, Executive Legislation and the Separation of Powers in India (Oct. 25, 2020, 8:00 pm), https://adminlawblog.org/2017/03/23/gautam-bhatia-executive-legislation-the-separation-of-powers-and-the- Indian-supreme-court/.

necessity. This extended the scope of judicial review following the 44th Constitutional Amendment. It was also ruled that ordinances do not create lasting legal effects after they lapse, reaffirming the principle of parliamentary supremacy and separation of powers. Nonetheless, the judgment has faced criticism for not expressly prohibiting re-promulgation in all circumstances and for failing to explicitly overrule the D. C. Wadhwa27 exception that had allowed re-promulgation if legislative time was insufficient. Legal scholars like Gautam Bhatia have commented and highlighted some key elements such as the ambiguity surrounding the judgment’s treatment of re-promulgation, arguing that it did not categorically declare the practice unconstitutional thereby leaving scope for exceptional cases which may as well shadow misuse of such provisions.

Critical Perspectives on Re-promulgation Practices The aforementioned analysis shows that this practice of re-promulgation is unconstitutional, which can further be substantiated by the landmark precedents that are quoted. The procedural defects highlight how misuse/misinterpretation of such regulations can lead to adverse setbacks to the country. Additionally, such loopholes aid the permanency of temporary laws that are made during emergencies (extreme circumstances) that may not necessarily coincide or be necessary for the scenarios that exist post-emergency period(s). Article 123 is ambiguous about re-promulgation, as it neither permits nor prohibits it. 28 The extent of judicial scrutiny indicates that re-promulgation undermines the theory of separation of powers and then jeopardizes the fundamental framework of the Indian Constitution.

It renders Parliament superfluous by infringing upon its legislative powers and neglecting its advising duty. Furthermore, promulgation is inherently defective as it violates the stipulated six-week timeframe (from the reconvening of the parliamentary houses) and reinstates a prior ordinance, thereby rendering this practice erroneous since the “duration of an ordinance can only be extended if it is transformed into an act through adherence to the appropriate legislative process and acknowledgement of the parliament's role. ” 29

27 D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378.

28 Shubhankar Dam, Presidential Legislation in India: The Law and Practice of Ordinances (Cambridge University Press 2014)

29 Ibid.

Conclusion The ordinance-making power under Articles 123 and 213 of the Indian Constitution was intended as an emergency measure for urgent situations when the legislature is not in session. However, this power has increasingly been misused by the executive for routine matters rather than genuine emergencies, jeopardizing the balance between the executive and the legislature. While ordinance-making is necessary in exceptional cases, the executive's exploitation of constitutional loopholes has led to the issuance of ordinances without adequate justification for the claimed urgency. Moreover, some ordinances address non-urgent matters, undermining the principle that a true "emergent situation" is required for promulgation.

Although the Supreme Court has recognized the unconstitutionality of re-promulgation, the exceptions established in the DC Wadhwa case remain vague and unsubstantiated, further complicating the landscape of ordinance-making. The absence of a mandatory time limit for presenting ordinances to the legislature enables the executive to circumvent legislative scrutiny indefinitely. To restore the integrity of this constitutional provision, it is crucial to amend the Constitution to impose a specific timeframe for legislative review of ordinances. Additionally, the ambiguities in the Wadhwa exceptions must be addressed, necessitating the executive to provide compelling reasons for issuing an ordinance. By implementing these changes, the original intent of the ordinance-making power can be preserved, minimizing potential misuse and reinforcing the rule of law in a democratic society.