Ordinance: Definition and Meaning


The President's authority to issue ordinances under specific situations is a major element of the Indian Constitution. In India, an ordinance is a legislative act issued by the President or a state governor that has the same force and effect as an act of Parliament or a state legislature, but is issued when neither the Parliament nor the state legislature is in session. The objective of an ordinance is to give immediate relief or remedy for an urgent problem and to serve as a stopgap measure until the Parliament or state legislature enacts a permanent law.

What is Ordinance?

The literal meaning of ‘ordinance’ is – “an authoritative command or order” normally issued by the supreme authority to bring a policy or rulings into effect. Likewise, ordinances are temporary laws, which are promulgated by the President of India usually on the recommendation of the Union Cabinet. The ordinance has the same effect as an Act legislated by the Parliament. The ordinances enable the Indian government to take immediate legislative action.

Under Article 123, the Constitution of India authorizes the President to issue an ordinance when he or she is convinced that exigent circumstances require him or her to act immediately. The President may only issue an ordinance when neither house of parliament is in session, or when only one house is in session and it is impossible to gain the opinion of the other.

Under Article 213, the Constitution gives same power to governor of every state. Under this provision, the governor can promulgate ordinance in a critical situation especially when the state legislature is not in session.

It is important to note that an ordinance has a limited lifespan and must be approved by the Parliament or state legislature within six weeks of the reassembly of the House; otherwise, it expires. The President or governor may re-promulgate an ordinance if neither the Parliament nor the state legislature is in session within six weeks of its promulgation. However, if the ordinance is re-promulgated more than twice, it must be adopted within six months by the Parliament or state legislature.

Provisions Related to Ordinance

The Indian Constitution contains the power of ordinance, which enables the President and Governors of states to take rapid legislative action in specific situations. The authority to publish an ordinance is an extraordinary measure that allows for prompt relief or redress in emergency situations when neither the Parliament nor the state legislature is in session.

The President and Governors have similar authority to promulgate ordinances, although their area of authority varies. The President may only issue an ordinance if neither House of Parliament is in session or if only one House is in session and it is impossible to gather the opinions of the other. In contrast, the governor of a state can only promulgate an ordinance when the state legislature is not in session.

The Indian judiciary has decided several key decisions touching the power of ordinance. In the case of S.R. Bommai vs. Union of India, the Supreme Court of India ruled that the authority to publish an ordinance may only be employed within the constitutional parameters and under extraordinary conditions. The Court also ruled that ordinance power must be employed in a fair manner and cannot be used to circumvent the usual legislative process.

The Indian Constitution establishes a Committee for Ordinance Power to guarantee that the power of ordinance is handled responsibly. This Committee is charged with examining and advising the President or Governor on the exercise of ordinance power. The Committee is comprised of members of both Houses of Parliament or the state legislature, depending on the context, and is presided over by the Speaker of the House or Legislative Assembly.

Limitation on Power of Ordinance

The President can only issue an ordinance while neither house is in session or when only one house is in session. For an ordinance to be promulgated, there must be circumstances that require the President to legislate through the ordinance.

In RC Cooper vs. Union of India (1970), the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969, which sought to nationalize 14 of India's largest commercial banks, held that the President's decision could be challenged on the grounds that 'immediate action' was not required; and that the Ordinance had been passed primarily to avoid debate and discussion in the legislature.

The 38th Amendment Act added a new clause (4) to Article 123 saying that the President's satisfaction at the promulgation of an Ordinance is conclusive and cannot be challenged in court on any basis. However, the 44th Amendment to the Indian Constitution altered this and made the President's approval of an ordinance a subject of judicial review. Ordinances may only be introduced on issues for which the Indian Parliament has the authority to establish laws.

Fundamental Rights and Ordinance

Citizens' rights protected by the Indian Constitution's Fundamental Rights cannot be taken away through ordinances. Ordinance expires if the legislature fails to act within six weeks of its reassembly. The ordinance is also null and void if both houses vote a resolution rejecting it. Remember: An ordinance's maximum duration is six months and six weeks.

Different Dimensions of Ordinance

Article 123 of the Constitution of India permits the President to issue ordinances during parliamentary recesses, whereas Article 213 empowers the Governors to do the same while the legislature is not in session. Governors and the President have the same authority to enact ordinances for immediate action at both levels, but must present them to the legislature when the central or state legislature reconvenes.

The President/Governor should only draught an Ordinance if he is convinced that the requisite conditions for prompt action exist in a particular territory. Such an Ordinance shall expire six weeks following the reassembly of Parliament or a State Assembly, and the maximum duration of an Ordinance is six months and six weeks, as the maximum time between two sessions of Parliament is six months.

The President/Governor may also revoke an Ordinance at any time; however, his power to make/revoke an Ordinance is not discretionary, and he may promulgate or revoke an Ordinance only on the advice of the Council of Ministers led by the prime minister in the parliament or the Council of Ministers led by the chief minister in the assembly.

In the following instances, the Governor of a state cannot pass an ordinance without the President's approval −

  • Similar regulations necessitate the consent of the President prior to the introduction of a bill in the Assembly.

  • Where Bills have identical provisions for which the Governor has recommended reserving the Bills for the President's consideration.

  • Where laws have identical provisions, and which provisions should require the President's signature.

An Ordinance proclaimed by the President/Governor may be retroactive, which means it may date back to an earlier time and change or repeal any Act or Ordinance already in effect.

Ordinances issued by the President/Governor shall not abrogate any fundamental rights, shall not amend the Constitution, and shall not alter the Constitution's fundamental framework.

Even in the absence of war, external aggression, or armed revolt, the President has the authority to promulgate ordinances. This power has nothing to do with national emergence. The Constitution declares that the power to enact ordinances is intended to enable the government to respond swiftly and decisively to unforeseen situations. When the Congress/Parliament is not in session.

Lastly, it is an important point to note that an amendment to the Constitution cannot be adopted via ordinance. Ordinance route is foreseen for immediate action, i.e., if the President is convinced that circumstances exist that need him to take urgent action, he may promulgate such Ordinances as the circumstances appear to necessitate.

Case laws and Judicial View

The constitutional and legal legitimacy of an executive order issued by the President or Governor may be contested in court on the following grounds −

  • If it violates any of the fundamental rights guaranteed by our constitution.

  • If it violates essential articles and the fundamental structure of our Constitution.

  • Its retrospective nature is unconstitutional if President's abuse of the power to enact laws reveals a malicious nature.

In AK Roy v. Union of India (1982), when considering the validity of the National Security Ordinance, 1980, which intended to provide for preventative detention in some situations, the Court ruled that the President's ability to issue ordinances is not immune to judicial review.

In T. Venkata Reddy v. State of Andhra Pradesh (1985), the Supreme Court ruled that the motivations behind the exercise of this power cannot be questioned, just as with laws enacted by the British Parliament and state legislatures.

DC in Wadhwa v. State of Bihar (1987), the Supreme Court ruled that re-promulgated ordinances could be struck down.

Conclusion

The power of ordinance is an extraordinary element of the Indian Constitution that enables the President and Governors to take rapid legislative action in specific situations. Nevertheless, this authority is subject to certain restrictions and must be employed with discretion, bearing in mind the ephemeral character of ordinances and the necessity for approval by the Parliament or state legislature.

Further, it is true that Ordinance is promulgated in the President's name and to his constitutional satisfaction, it is actually promulgated on the suggestion of the Council of Ministers. Also, be aware that the President's right to enact ordinances is an example of subordinate legislation, in which the true law-making body – Parliament - delegated its powers to the executive during Parliament's recess.

FAQs

Q1. What is the definition of an ordinance in the Indian Constitution?

Ans. In India, an ordinance is a temporary piece of legislation issued by the President or a state governor that has the same force and effect as an act of Parliament or the state legislature.

Q2. When can the President issue an executive order?

Ans. The President may only issue an ordinance when neither house of parliament is in session or when only one house is in session and it is impossible to gain the opinion of the other.

Q3. What purpose does an ordinance serve?

Ans. The objective of an ordinance is to give immediate relief or remedy for an urgent problem and to serve as a stopgap measure until the Parliament or state legislature enacts a permanent law.

Q4. How long does a regulation remain in effect?

Ans. An ordinance has a limited lifespan and must be ratified by the Parliament or state legislature within six weeks of the House's reassembly, or it expires.

Q5. What is the Committee for Ordinance Power's function?

Ans. The Committee for Ordinance Authority is tasked with examining and advising the President or Governor on the use of ordinance power.

Updated on: 16-Mar-2023

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