Ordinance-Making Power: What It Can and Can't Do

An Ordinance is the President's power, under Article 123, to legislate when Parliament is not in session and immediate action is needed. It exists because a country cannot simply pause governance whenever both Houses happen to be out of session, but it is deliberately built as an emergency tool, not a parallel law-making track.

Same force as an Act: with one hard limit

An Ordinance has the same force and effect as an Act of Parliament. That means it can do almost everything a regular law can do: amend or repeal an existing Central Act, impose taxes, or apply retrospectively. The one thing it can never do, because it carries the same legal status as ordinary law, no more and no less, is abridge or take away a Fundamental Right. An Ordinance is bound by Part III of the Constitution exactly as any Act of Parliament is.

Retrospective effect is allowed

Because an Ordinance functions as a full-strength law, it can be given retrospective effect, just like an ordinary Act, a fact that surprises students who assume "emergency" measures must only apply going forward.

How long an Ordinance lasts

An Ordinance must be laid before Parliament when it reconvenes, and it lapses six weeks from the reassembly of Parliament unless approved by both Houses before that. In practice, this means an Ordinance's real lifespan depends entirely on when Parliament next sits. It could be in force for months if Parliament was recently prorogued, or for just a few weeks if a session is imminent.

The D.C. Wadhwa case: the abuse UPSC tests

In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court examined a practice where the Bihar government had repeatedly re-promulgated the same Ordinances, sometimes for years, without ever placing them before the Legislature for approval. The Court held this was a "fraud on the Constitution", the ordinance power exists for genuine emergencies between sessions, not as a way to permanently bypass the legislature altogether. This case is UPSC's favourite way to test whether students understand that the ordinance power has real limits despite its broad force.

Judicial review: R.C. Cooper

R.C. Cooper v. Union of India (1970) (the bank nationalisation case) established that the President's satisfaction in issuing an Ordinance is not completely beyond judicial review, courts can examine whether the power was exercised in bad faith or on wholly irrelevant grounds, even though they generally do not second-guess the underlying policy choice itself.

The state-level version: Article 213

Governors have an equivalent power under Article 213 to promulgate Ordinances for a State when its Legislature is not in session, subject to broadly the same limits (same force as an Act, cannot touch Fundamental Rights, six-week lapse window). One added restriction applies at the state level: for certain categories of Bills that would have required the President's prior instructions or assent if introduced as ordinary legislation, a Governor cannot promulgate an Ordinance on that subject without first receiving those same instructions from the President.

Quick revision points

• Article 123 (President) and Article 213 (Governor) are the two ordinance-making provisions.
• Same force as an Act; can be retrospective; cannot touch Fundamental Rights.
• Lapses six weeks from Parliament's reassembly unless approved earlier.
• D.C. Wadhwa (1987): repeated re-promulgation without legislative approval is a "fraud on the Constitution."
• R.C. Cooper (1970): the President's satisfaction is judicially reviewable for bad faith, not immune from all scrutiny.

It is a compact, high-yield area: a handful of precise rules that combine into many different statement-based questions, so practise them once the rules are clear.