Introduction and Constitutional Basis
The Ordinance-making power of the President is provided under Article 123 of the Indian Constitution. This article empowers the President to promulgate ordinances when Parliament is not in session and immediate action is necessary. Such ordinances have the same force and effect as an Act of Parliament, but they are temporary in nature. The provision ensures continuity in governance and prevents legislative paralysis during emergencies or unforeseen situations. However, this power is not absolute; it is exercised on the advice of the Council of Ministers under Article 74, maintaining the democratic spirit of parliamentary control.
Scope and Limitations
The President can issue an ordinance only when both Houses of Parliament are not in session. An ordinance must be laid before Parliament and will cease to operate six weeks after the reassembly of Parliament unless approved by both Houses. The President cannot promulgate an ordinance that violates the Constitution or fundamental rights. Furthermore, the ordinance-making power is subject to judicial review. In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court held that re-promulgation of ordinances without legislative approval is unconstitutional, emphasizing that ordinances are an emergency measure, not a substitute for regular legislation.
Significance and Constitutional Balance
The ordinance-making power serves as a bridge between the executive and legislature, enabling the government to address urgent issues that cannot wait for parliamentary approval. It reflects the flexibility and dynamism of the Indian Constitution. However, the misuse of this power can undermine parliamentary supremacy. Therefore, constitutional safeguards and judicial scrutiny ensure that the executive does not misuse ordinances to bypass legislative processes. This power represents a delicate balance between necessity and accountability, reinforcing the principle of separation of powers within a parliamentary democracy.
Real-Time Example
A real example of this power is the 2020 Indian Farm Laws, which were initially promulgated through three Presidential Ordinances before being passed as Acts by Parliament. These ordinances aimed to liberalize agricultural marketing and trade but later sparked nationwide protests. The case highlights how the executive can use ordinance power to implement policy swiftly, yet it also shows that political and public scrutiny remain vital in maintaining democratic checks and balances.
Mnemonic to Remember – “POWER”
P – President acts under Article 123
O – Ordinance issued when Parliament not in session
W – Withdraws after six weeks if not approved
E – Emergency legislative power, not a substitute for Parliament
R – Reviewed by Judiciary (D.C. Wadhwa case)
The mnemonic “POWER” helps recall the essence of the ordinance-making power — President’s emergency legislative authority with checks of Parliament and judiciary.
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Explore the Ordinance-Making Power of the President in India under Article 123 at Lawgnan.in. Learn how this constitutional mechanism allows the President to issue ordinances during parliamentary recess to address urgent matters requiring immediate legal action. Understand its scope, duration, and judicial scrutiny, with landmark references such as D.C. Wadhwa v. State of Bihar (1987). This article explains how ordinances act as emergency legislative tools while maintaining checks through parliamentary and judicial oversight. Perfect for law students, UPSC aspirants, and legal researchers, it offers a detailed yet simplified explanation of executive law-making powers in India.
