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NO. no.
1. Abstract, Keywords, Research Objectives and Mathodology 2

2. Introduction and Constitutional Provisions 3

3. Scope and Limitations of Ordinance Powers 4

4. Repromulgation and Relevant case laws 5-7

5. Conclusion and Suggestions 8-9

6. Bibliography 10

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Abstract:

The power of issuing ordinances is an important executive function vested in the President
and Governors in many countries, including India. This research paper aims to
comprehensively analyse the ordinance powers of the President and Governors in India,
with a comparative study of their powers, limitations, and relevant case laws. The paper also
critically evaluates the exercise of ordinance powers by the President and Governors,
including instances where such powers have been challenged on various grounds, such as
mala fide exercise, abuse of power, and violation of fundamental rights. The paper
concludes with recommendations for ensuring a judicious and accountable exercise of
ordinance powers by the President and Governors, including the need for clear guidelines,
transparency, and constitutional safeguards.

Keywords: Ordinances, President, Governors, Constitution, Judicial Review.

Research objectives:

1. To provide a comprehensive overview of the ordinance powers of the President and

Governors in India, including the constitutional provisions, scope, and extent of these
powers.

2. To analyse relevant case laws related to the ordinance powers of the President and
Governors, including judgments of the Supreme Court and High Courts, and examine the
legal principles and guidelines laid down by the judiciary in interpreting and scrutinizing
the exercise of ordinance powers.

Methodology: The research methodology for this paper includes a comprehensive legal
analysis of relevant laws, case laws and other sources of information related to the ordinance
powers and limitations of such powers.

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 Introduction:

The power of issuing ordinances1 is an important aspect of the executive authority vested in
the President and Governors in many countries, including India. Ordinances are temporary
laws that are promulgated by the executive when the legislature is not in session or unable
to legislate on urgent matters. The ordinance powers are aimed at ensuring that the
government can respond promptly to emergent situations and address pressing issues that
require immediate attention.

The concept of ordinances is rooted in the British legal system, which was originally used
to give temporary legislative powers to the Crown. In India, the power of issuing ordinances
is enshrined in the Constitution, which delineates the scope, extent, and limitations of such
powers for the President and Governors.

Constitutional Provisions:

The Constitution of India, which came into effect on January 26, 1950, grants ordinance
powers to the President and Governors under Article 123 and Article 213, respectively.
Article 1232 of the Constitution confers ordinance-making power upon the President of
India. According to Article 123(1), the President has the power to promulgate ordinances
when both Houses of Parliament are not in session and the President is satisfied that
circumstances exist which require immediate action. The President can also promulgate
ordinances during the recess of Parliament, but the ordinance must be laid before both
Houses of Parliament when they reassemble and ceases to operate at the expiration of six
weeks from the reassembly unless approved by both Houses earlier.

Similarly, Article 2133 of the Constitution grants ordinance-making power to the Governors
of states in India. According to Article 213(1), the Governor has the power to promulgate
ordinances when the state legislative assembly is not in session and the Governor is satisfied
that circumstances exist which require immediate action. Like the President's ordinances,
the Governor's ordinances also need to be approved by the state legislative assembly within

1
Volume 35, Halsbury’s Laws of India, Pg. 26 (Lexis Nexis Butterworth’s, New Delhi 2005)
2
Constitution of India, art. 123.
3
Constitution of India, art. 213.

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 six weeks from its reassembly, failing which it ceases to operate. The ordinance powers of
the President and Governors are thus derived from the Constitution and are subject to the
limitations and guidelines laid down in the Constitution itself.

Scope of Ordinance Powers:

The ordinance-making power of the President and Governor is aimed at addressing urgent
and unforeseen situations that require immediate legislative action. The scope of their
ordinance powers is limited to matters on which the President or Governor has the power to
make laws under the Constitution4. The ordinances must also be in line with the principles
of the Constitution and should not contravene the fundamental rights guaranteed under Part
III of the Constitution of India.

Limitations on Ordinance Powers:

The ordinance-making power of the President and Governor is subject to certain limitations
to prevent its misuse. Some of the key limitations include:

⮚ Legislative Prohibition: The President and Governor cannot promulgate ordinances on

matters on which the legislature is prohibited from making laws. For example, the President
cannot promulgate an ordinance on a matter that falls within the exclusive jurisdiction of
the state legislature.
⮚ Repugnancy: If an ordinance is repugnant to an existing law made by Parliament or the state
legislature, the ordinance ceases to operate after six weeks from the reassembly of the
legislature, unless it is converted into a law by the legislature before the expiry of the six-
week period.
⮚ Constitutional Provisions: The President and Governor cannot promulgate ordinances on
matters for which specific provisions have been made in the Constitution. For example, the
President cannot promulgate an ordinance to amend the Constitution or suspend any
constitutional provision's operation.

4
Constitution of India, art. 123(1).

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⮚ Judicial Review: The ordinances issued by the President and Governor are subject to judicial
review by the courts. If an ordinance is found to be unconstitutional, it can be struck down
by the courts.

Repromulgation and Relevant Case Laws:

The Constitution of India does not specifically address the issue of repromulgation of
ordinances in Article 123 and Article 213, which could be interpreted in two ways -
permissive or prohibitive. While the authors may prefer the latter, it is often understood as
the former. An example of such repromulgation is the Land Acquisition Ordinance passed
by the BJP government in 2014, which lapsed in Parliament but was repeatedly
repromulgated until it was eventually passed 5. Similar misuse of repromulgation has been
observed in the state of Bihar, where ordinances have remained in force for long periods of
time, effectively bypassing the legislative process and challenging the supremacy of
parliament in lawmaking. As the intention of the members of the Constituent Assembly
regarding repromulgation is unclear, the issue has been left to judicial interpretation.
However, over the past 70 years, the courts have not been able to provide a clear stance on
the matter, resulting in a grey area that allows the executive to repeatedly repromulgate
ordinances without proper clarification. 6
Although the courts have acknowledged that repromulgation of ordinances is a "fraud on
the Constitution," they have provided leeway for exceptions to existing, citing the DC
Wadhwa7 case. However, this exception is viewed as an erroneous position in the law and
often exploited as a loophole for widespread repromulgation of ordinances. In the case of
Gyanendra Kumar v. Union of India 8, where ten promulgations were scrutinized, the
petitioners argued against repromulgation as a fraud on the Constitution, while the state
defended it using the DC Wadhwa exception, stating that Parliament was too busy to debate
the ordinance. The Supreme Court sided with the state, allowing repromulgation. This
exception has been misused, as the executive can justify repromulgating an ordinance by
simply not presenting it before Parliament and claiming a lack of time for discussion. This
allows a "fraud on the Constitution" to transform into lawful action through inaction.
Justice Chandrachud attempted to address the issue posed by the DC Wadhwa exception in
Krishna Kumar Singh v. State of Bihar 9 by questioning the possibility of exceptional
circumstances where the legislature was unable to enact legislation similar to an ordinance
due to workload or other reasons. Instead of directly answering the question, he held that
repromulgation of ordinances is constitutionally impermissible. While he did not explicitly

5
Singh, Prerna, "The Ordinance Raj: Bypassing Democratic Procedure," India Together (Apr. 25, 2015),
https://indiatogether.org/the-ordinance-raj-bypassing-democratic-procedure/ last visited on 18th April 2023.
6
Ayush Lahoti and Samridh Sinha, Promulgation and Re-Promulgation of Ordinances: A threat to Parliament
Supremacy, Manupatra, Jun 3, 2021, https://articles.manupatra.com/article-details/Promulgation-and-Re-
Promulgation-of-Ordinances-A-threat-to-Parliament-Supremacy last visited on 13th April 2023.
7
D.C. Wadhwa v. State of Bihar 1987 AIR 579, 1987 SCR (1) 798.
8
Gyanendra Kumar v. Union of India AIR 1997 Delhi 58.
9
Krishna Kumar Singh v. State of Bihar & Ors on 2 January 2017.

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 overrule the DC Wadhwa exception by stating that there are no possible exceptional
circumstances where the courts could not deliberate upon an ordinance, his response carries
strong implications. Justice Chandrachud also criticized the "hope and trust" principle laid
down in DC Wadhwa, where it was stated that repromulgation of ordinances would not
happen. The court specifically noted the "exceptional circumstances escape clause" in DC
Wadhwa and its criticism that it is within the power of the Parliament to set the agenda for
discussion and extend the time of the session to discuss an ordinance. However, in the
present case, the State of Bihar failed to show any exceptional circumstances, and therefore
the court did not deliberate upon the criticism. As a result, whether the DC Wadhwa
exception was overruled remains ambiguous, allowing the Executive to continue exploiting
the loophole.10
Important case laws have shaped the interpretation of the ordinance powers of the President
and Governor in India. Some of the relevant case laws include:

AK Roy v Union of India11 the Supreme Court of India examined the constitutional validity
of the government's power to promulgate ordinances under Article 123 of the Constitution
of India. The court held that the power to promulgate ordinances is a legislative power,
which is subject to the constitutional limitations of the separation of powers and the
requirement of an emergency. The court further held that the power to promulgate
ordinances cannot be used to bypass the legislative process or to undermine the
constitutional scheme of checks and balances.

Constitution of India art 13(3) provides that in art 13. 'law' includes, inter alia, an ordinance
unless the context otherwise requires. In view of the fact that the context does not otherwise
so require, it must follow from the combined operation of the Constitution of India arts 15(2)
and (5) that an ordinance issued by the President of India under the Constitution of India art
123, which is equated by clause (2) of that article with an Act of Parliament, is subject to
the same constraints and limitations as the latter. Therefore, whether the legislation is
Parliamentary or Presidential whether it is a law made by the Parliament or an ordinance
issued by the President, the limitation on the power is that the fundamental rights conferred
by the Constitution of India pt III may not be taken away or abridged in the exercise of that
power. An ordinance, like a law made by the Parliament, is void to the extent of
contravention of that limitation. The exact equation, for all practical purposes, between a

10
Ibid 4.
11
AK Roy v Union of India AIR 1982 SC 710.

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 law made by the Parliament and an ordinance issued by the President is emphasised by yet
another provision of the Constitution of India. 12

A law made under the Constitution of India art 357 continues in force until altered, repealed,
or amended by a competent legislature or authority an ordinance promulgated under the
Constitution of India art 123 ceases to operate at the expiration of six weeks from the
reassembly of Parliament at the latest.13

State of Rajasthan v. Union of India 14: In this case, the Supreme Court held that the
ordinance-making power of the President and Governor is not a parallel source of law-
making and should be used sparingly and cautiously. The court emphasized that the power
to promulgate ordinances is an extraordinary power that should be used only in exceptional
circumstances when the situation demands immediate legislative action.

S.R. Bommai v. Union of India 15: In this landmark case, the Supreme Court held that the
President's or Governor's power to promulgate ordinances under Article 356 of the
Constitution, which relates to the imposition of the President's Rule in a state, is subject to
judicial review. The court held that the President or Governor cannot exercise the power to
promulgate ordinances as a substitute for the legislative power of the state. The court also
laid down certain guidelines for the exercise of ordinance powers, including the requirement
of the President or Governor to be satisfied that the situation requires immediate action and
that the ordinance must be limited in duration and subject to parliamentary or legislative
approval.

12
Volume 35, Halsbury’s Laws of India, Pg. 29 (Lexis Nexis Butterworth’s, New Delhi 2005)
13
Constitution of India, art. 357; art. 123(2).
14
State of Rajasthan v. Union of India 1977 AIR 1361, 1978 SCR (1) 1.
15
S.R. Bommai v. Union of India 1994 AIR 1918, 1994 SCC (3) 1.

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 Conclusion:

The ordinance powers of the President and Governor in India are an important aspect of the
Indian Constitution, allowing them to promulgate laws in exceptional circumstances.
However, these powers are subject to certain limitations to prevent their misuse. The scope
and limitations of these powers have been defined through various case laws, emphasizing
the need for the judicious exercise of these powers. It is essential for the President and
Governor to exercise their ordinance powers in strict compliance with the Constitution and
the principles of judicial review. Further, the judiciary plays a significant role in ensuring
that these powers are not abused and are used only in situations that warrant immediate
legislative action.

Recommendations for ensuring a judicious and accountable exercise of ordinance powers

by the President and Governors, including the need for clear guidelines, transparency, and
constitutional safeguards,

● Clear Guidelines: There should be clear guidelines laid down for the exercise of ordinance
powers by the President and Governors. These guidelines should specify the circumstances
under which ordinances can be promulgated, the duration for which they can remain in
force, and the requirement for parliamentary or legislative approval. The guidelines should
also outline the principles of the Constitution that must be adhered to, and the limitations on
the exercise of ordinance powers.
● Transparency: The process of promulgating ordinances should be transparent, and the
reasons for promulgating an ordinance should be made public. The President or Governor
should provide a clear justification for the use of ordinance powers, explaining the urgency
and necessity of the situation that warrants immediate legislative action. This would ensure
that the exercise of ordinance powers is not arbitrary or opaque, and that the public and other
stakeholders are aware of the reasons behind the promulgation of an ordinance.

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● Constitutional Safeguards: The exercise of ordinance powers by the President and
Governors should be in strict compliance with the Constitution. It should not contravene the
provisions of the Constitution, including the fundamental rights guaranteed under Part III.
The judiciary should play an active role in upholding the constitutional safeguards and
ensuring that ordinances are not promulgated on matters for which specific provisions have
been made in the Constitution.
● Judicial Review: The judiciary should have the power of judicial review over the exercise
of ordinance powers by the President and Governors. This would ensure that the ordinances
are in line with the Constitution and are not arbitrary or unconstitutional. The courts should
be vigilant in examining the validity of ordinances and should strike down ordinances that
are found to be unconstitutional or beyond the scope of ordinance powers.
● Reporting and Accountability: The President and Governors should be required to report to
the legislature on the exercise of ordinance powers, providing details of the ordinances
promulgated and the reasons for their promulgation. This would ensure that the exercise of
ordinance powers is accountable to the elected representatives of the people and can be
subject to parliamentary or legislative scrutiny.

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 Bibliography:
Books:
1. Halsbury’s Laws of India, Volume 35, (Lexis Nexis Butterworth’s, New Delhi 2005)
2. V.N Shukla’s Constitution of India, 14th edition, 2022, Mahendra Pal Singh.
3. M P Jain, Indian Constitutional Law, 8th edition, 2022, Lexis Nexis.
4. The Constitution of India, bare act.

Websites:

1. https://articles.manupatra.com
2. https://indiatogether.org

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