How Ordinances Replace Parliamentary Debate
Article 123 of the Constitution of India empowers the President — acting on the advice of the Council of Ministers — to promulgate ordinances when both Houses of Parliament are not in session and when circumstances exist that render immediate action necessary. An ordinance has the same force and effect as an Act of Parliament. It is not a subordinate instrument or an executive guideline; it is legislation, produced by the executive, without the participation of the legislature.
This power was designed as an emergency provision — a constitutional safety valve for situations requiring urgent legislative intervention between parliamentary sessions. In practice, it has evolved into a routine instrument of governance that allows governments to legislate on politically sensitive or time-sensitive matters while bypassing the deliberative scrutiny of parliamentary debate.
 |
| Representational Image: How Ordinances Replace Parliamentary Debate |
What You Need to Know
- Article
123 of the Constitution empowers the President to promulgate ordinances
when both Houses of Parliament are not in session — crucially, the power
can also be used when one House is in session but the other is not.
- An
ordinance must be laid before both Houses when Parliament next assembles
and ceases to operate six weeks after reassembly unless earlier approved
by both Houses or disapproved by both Houses through resolution; the
maximum life of an ordinance is six months and six weeks.
- An
ordinance cannot amend the Constitution, cannot violate fundamental
rights, and cannot make a law that Parliament would not be
constitutionally competent to make; it is subject to judicial review.
- The
Supreme Court in Krishna Kumar Singh v. State of Bihar (2017) — a
seven-judge bench — held that the satisfaction of the President or
Governor before issuing an ordinance is subject to judicial review;
re-promulgation of ordinances to bypass the legislature constitutes a
fraud on constitutional power.
- Since
1950, more than 750 ordinances have been issued at the Union level;
between 2014 and 2023, 76 were issued — including ordinances on farm
legislation, land acquisition, financial regulation, and media regulation
— according to TARUN IAS analysis of PRS-cited data.
How It Works in Practice
1. Presidential satisfaction and Cabinet advice: The
President promulgates an ordinance when satisfied that circumstances
necessitate immediate action. In practice, the decision is made by the Council
of Ministers; the President acts on Cabinet advice. Since the 44th
Constitutional Amendment, the President's satisfaction is justiciable — courts
can examine whether the preconditions for promulgation were genuinely met.
2. Scope and legal force: An ordinance may make any
law that Parliament is competent to make on Union or Concurrent List subjects.
It may modify or repeal existing Acts of Parliament. It may have retrospective
effect. It may amend tax laws. It cannot be used for constitutional amendments;
that requires the process under Article 368.
3. Parliamentary ratification: When Parliament
reassembles, the ordinance must be laid before both Houses. If Parliament
approves it — by passing a bill converting it into an Act — the law continues.
If Parliament disapproves by resolution, the ordinance ceases to operate. If
neither happens within six weeks, the ordinance lapses automatically.
4. Ordinance-replacing bills: The government
typically introduces a bill to replace an ordinance within the six-week window.
Where the government has a majority, this bill passes without difficulty,
effectively converting the executive legislative act into a regular Act — but
the pre-legislative scrutiny that a bill would normally receive before
introduction is absent.
5. Re-promulgation: If Parliament is adjourned before
ratifying an ordinance, the government may re-promulgate it — issuing a new
ordinance to keep the law in force through the next inter-session gap. The
Supreme Court has held that while re-promulgation may be permissible in
genuinely exceptional circumstances, repeated re-promulgation to keep
ordinances alive without bringing them to the legislature is unconstitutional.
What People Often Misunderstand
- Ordinances
are not subordinate legislation: They are not rules, regulations, or
circulars — they are primary legislation with the same force as an Act of
Parliament; the only difference is their temporary nature and executive
origin.
- The
ordinance power is not unlimited: Constitutional restrictions —
fundamental rights, legislative competence, basic structure, judicial
review of presidential satisfaction — provide genuine constraints; abuse
of the power can be challenged in court.
- Ordinances
are not always used to bypass scrutiny: Some ordinances genuinely
address emergencies — banking crises, national security situations,
agricultural market emergencies — where inter-session delays could cause
real harm; the critique applies to routine rather than genuine emergency
use.
- An
ordinance that lapses does not invalidate actions taken under it: Even
if an ordinance expires without parliamentary approval, actions taken in
good faith under the ordinance before it lapsed remain valid — they are
not automatically voided.
- State
governors' ordinance power is similar but involves Presidential approval
in some cases: Certain state ordinances require the President's
approval before promulgation — particularly those relating to High Courts,
fundamental rights, or subjects requiring Presidential assent for state
bills.
What Changes Over Time
The Supreme Court's progressive tightening of ordinance
jurisprudence — from R.C. Cooper v. Union of India (1970) establishing
justiciability of Presidential satisfaction, through D.C. Wadhwa (1987)
condemning re-promulgation, to Krishna Kumar Singh (2017) making the
constitutional limitations explicit — has built a substantial body of doctrine
constraining ordinance use. In practice, governments continue to use ordinances
frequently; the gap between doctrine and practice reflects the difficulty of
judicial intervention during the period when the ordinance is in force and
before Parliament ratifies or disapproves it. The political and governance
utility of bypassing parliamentary debate has proven durable across different
governments and political configurations.
Sources and Further Reading
- Constitution
of India — Article 123: https://www.constitutionofindia.net/articles/article-123-power-of-president-to-promulgate-ordinances-during-recess-of-parliament/
- Drishti
IAS — Promulgation and Re-promulgation of Ordinances: https://www.drishtiias.com/daily-updates/daily-news-analysis/promulgation-and-re-promulgation-of-ordinances
- Vajiramandravi
— Ordinance Making Power of the President: https://vajiramandravi.com/upsc-exam/ordinance-making-power-of-president/
- GKToday — Article 123: https://www.gktoday.in/article-123/
- PRS Legislative Research — How is a law enacted in Parliament: https://prsindia.org/theprsblog/how-is-a-law-enacted-in-parliament