Q. With reference to the Indian polity, consider the following statements:

1. An Ordinance can amend any Central Act.
2. An Ordinance can abridge a Fundamental Right.
3. An Ordinance can come into effect from a back date.

Which of the statements given above are correct?

• 1 and 2 only
• 2 and 3 only
• 1 and 3 only
• 1, 2 and 3

Answer: (c) 1 and 3 only

Ordinance:

• An Ordinance, within the context of governance and law, is a piece of legislation enacted by a non-legislative authority, often the executive branch of government, under specific circumstances.
  • The provision of the Ordinance is mainly aimed at enabling the executive to make laws when the legislature is not in session or when an urgent matter demands immediate attention.
  • An Ordinance, usually, has the same force and effect as an Act enacted by the legislative body. The only difference between the two is that while an Act is permanent, an Ordinance is of a temporary nature.
• The Constitution of India provides for the promulgation of ordinances making power by the President of India as well as the Governors of states. The constitutional provisions regarding the same are as follows:
  • Article 123: empowers the President to promulgate ordinances during the recess of Parliament.
  • Article 213: empowers the Governor to promulgate ordinances during the recess of the State Legislature.

Ordinance Making Power of President:

• Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament.
• The Constitution puts the following four limitations on the ordinance making power of President.
  • An ordinance must be (1) laid before Parliament, (2) cease to operate after six weeks of Parliament’s reassembly unless approved, (3) withdrawn by the President at any time, and (4) not make provisions that Parliament itself lacks the power to enact.
  • The President can promulgate an ordinance only when either both or one of the Houses of Parliament are/is not in session.
• An ordinance promulgated by the President when both the Houses are in session is void. Thus, the power of the President to promulgate ordinances is not a parallel power of legislation.
  • The president can promulgate an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action.
  • Except for duration, the ordinance making power of the President is coextensive with regard to all matters, with the legislative powers of the Parliament. Thus:
    • An ordinance can be issued only on those subjects on which the Parliament has the power to make laws.
    • An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights.
  • Every ordinance promulgated by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles.
• The Parliament has the following three options w.r.t ordinance making power so brought before it:
  • Approve the Ordinance: If both houses of the Parliament approve the ordinance, it becomes an act immediately.
  • Disapprove the Ordinance: If both the Houses of Parliament pass resolutions disapproving the ordinance, it ceases to operate immediately.
  • Take No Action: If no action is taken by the Parliament w.r.t. the ordinance, it ceases to operate on the expiry of six weeks from thereassembly of Parliament.
    • If the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks is calculated from the later of those dates.
    • Thus, in case of non-approval by the Parliament, the maximum life of an ordinance can be six months and six weeks.
• This is because the maximum possible gap between the sessions of the Parliament can be six months.
• The following points are to be noted w.r.t. an ordinance making power promulgated by the President:
  • If an ordinance is allowed to lapse without being placed before Parliament, then the acts done and completed under it, before it ceases to operate, remain fully valid and effective.
  • The President can promulgate as well as withdraw an ordinance at any time.
    • However, it is to be noted that the ordinance making power of the President is not a discretionary power. He can promulgate or withdraw an ordinance only on the advice of the Union Council of Ministers (CoM).
  • Like any other legislation, an ordinance can be retrospective.
    • Thus, it may come into force from a back date.
  • As far as the Scope of the Ordinance is concerned, it
    • Can modify or repeal any act of Parliament or another ordinance.
    • Can amend a tax law.
    • Can not amend the Constitution.

Comparison between Ordinance Making Powers of President & Governors: