Ordinance in India [Concept for UPSC]

In this article, we will discuss about the Ordinance in india in a simple and easy way, and try to understand its various important aspects, So to understand the whole concept well, read the article till the end and read other related articles as well.

There is a saying – ‘All days are not the same’. This proverb becomes more relevant in politics as Parliament cannot run all day. After all, he too needs rest. Then who will do the work of making the law in such a situation?

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Ordinance in india

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What is an Ordinance in india ?

What if the Parliament is prorogued or say that it is on leave and the political situation changes in such a way that if there is a dire need of any law, then what will be done in such a situation?

Keeping this situation in mind, the Constitution has empowered the President under Article 123 to issue ordinances .

The same situation can happen in any state, that is why the Constitution has given the right to the Governor under Article 213 that he can issue an ordinance in the state.

By now you must have understood that an ordinance is nothing but a law which is made when Parliament is not functioning. Or if we talk about the state, when the state legislature is not working. In other words, the ordinance is nothing but a wild card entry into the world of law . Which is entered at the time of need.

These ordinances have the same effect and powers as laws made by Parliament and Legislature but they are short-lived in nature. That is, this law does not last forever like a law made by Parliament and Legislature. Rather, some limits have been set for it.

The process of issuing an ordinance enables the President to deal with situations that arise suddenly and the Parliament is not in session.
Dr. Bhimrao Ambedkar

The issuance of ordinances is a legislative power of the President at the Center and the Governor in the State. [We have talked about all the legislative power of the President in a separate article.] Barring some provisions, the President and the Governor have the same power to issue ordinances. The way the President issues ordinances at the Centre. In the same way, the governor issues ordinances in the state. In this article, we will discuss both so that the concept becomes completely clear.

Limitations of the President and the Governor to issue Ordinance in india

The President can issue an ordinance only in three situations.

1. When both the Houses of Parliament are not in session.

2. When Lok Sabha is prorogued but Rajya Sabha is in operation.

3. When Lok Sabha is in operation but Rajya Sabha has been prorogued.

That is, an ordinance can be issued even when only one house is in session in the parliament because obviously a bill has to be passed by both the houses and not only by one house.

One more thing can be understood from this that when both the Houses of Parliament are in session, an ordinance cannot be issued at that time.

Remember one more important thing that if the Lok Sabha is dissolved, that is, the government has fallen, then the President cannot issue an ordinance. The same applies to any state.

These borders were of the center. The question is, what will happen in the state?

There is also the position of the governor in a state. These three limits which have been told of the President, the same limits apply to the Governor as well.

But just keep in mind that in some states the legislature is bicameral. That is, there is a Legislative Council along with the Legislative Assembly. So, in all such states, the above three conditions will apply exactly there.

Where the legislature is unicameral, only the first number condition will work. That is, if the session of that house does not run.

If the President and the Governor deliberately prorogues the Parliament or the Legislature and brings an ordinance, remember that it can be challenged in the court.

|The President can issue an ordinance only if he is satisfied that the present situation is such that it is necessary for him to take immediate action.

Same is the situation in the case of Governor also. So there is no need to write it separately.

The time period of the ordinance and its three important aspects

1. Ordinance can be issued only on those issues on which Parliament can make laws. That is, an ordinance cannot be brought on an issue on which even Parliament cannot make a law for any reason.

2. An ordinance has the same constitutional limits as any law made by the Parliament. Therefore an ordinance can not abridge or take away any fundamental right .

If this happens, then it can be challenged in court and the court can review that ordinance in the same way as it does normal law.

3. As we know, Ordinance_ is issued only when Parliament is not in session. Whenever Parliament is prorogued, the rule is that there should not be a gap of more than 6 months between two prorogation. Usually doesn’t even happen.

That is why the maximum period of the ordinance_ is up to 6 months. Because obviously within these 6 months the session of Parliament will start.

As soon as the session of Parliament starts, that ordinance should be presented before both the Houses within 6 weeks. If both the Houses of Parliament pass that ordinance, then it assumes the form of law. And if that ordinance is disapproved by the Parliament, then that ordinance the same lapses.

If it is not introduced in the Parliament, it will automatically expire after 6 weeks from the start of the meeting. And if the meeting does not start, then that ordinance can remain valid for a maximum of 6 months.

Remember, if an ordinance lapses before it is laid on the floor of the Parliament, then the work done under this ordinance will still be valid and effective.

One more thing to remember if both the Houses of Parliament start on different dates. So The house which was started last, 6 weeks count will be from there.

It was a matter of the Centre. What will happen in the state?

Whatever story read above now applies in the case of the state also, there is no separate provision. Just in a state where there is a bicameral system, there is no problem at all because it will be implemented same to same.

But where there is a unicameral system, then the provision which is in the center for the Rajya Sabha should be removed. For example, if there it is presented in both the houses, then here it will be presented in only one house. Because there is only one house here.

The President can withdraw an ordinance at any time. But he cannot do this with his mind.

He issues any ordinance only on the advice of the cabinet headed by the Prime Minister and can also abolish it on his advice.

The position which is of the President at the center and that of the Governor in the state means that he too can take such a decision only on the advice of the cabinet headed by the Chief Minister.

Special provision regarding issuance of ordinances of the Governor

This is the only case that shows the difference between the issuance of ordinances between the President and the Governor. Actually, when the President issues an ordinance, then he does not need anyone’s direction. But this is not the case in the case of the Governor. The Governor has to take directions from the President to issue ordinances in certain cases.

| There are three types of situations when the Governor has to take directions from the President.

1. Any such bill which requires the permission of the President before being introduced in the State Legislature. An ordinance can be issued on such an issue only if the President’s permission has been taken.

2. Any such bill which has to be approved by the President after getting it passed by the State Legislature. When an ordinance is issued on such an issue, it will be able to come into force only when that ordinance is approved by the President.

3. If the Governor feels that a Bill should be sent for the consideration of the President. That is, where there is a need for approval as well as permission. So in such cases also the Governor takes directions from the President.

Some facts related to the Ordinance in india

Like a Bill, an ordinance can also be precedent, that is, it can be made effective from the previous date.

Since an ordinance works like a common law, it can do almost everything that can be done by a common law. But the Ordinance cannot amend the Constitution.

The ordinance-issuing power of the President of India is unique. This is unique because even in a country like America, the President has not got this right.

According to the rules of the Lok Sabha, when a Bill is introduced in the House to replace an Ordinance, the reasons and circumstances for issuing the Ordinance should also be presented before the House.

Comparison of Ordinance Making Powers of President and Governor

President	Governor
1. He can promulgate an ordinance only when both the Houses of Parliament or either House is not in session. That is, if even one of the houses is not in session, the President can promulgate an ordinance. This is because a law has to be passed by both the houses and not by one house.	1. He can promulgate an ordinance only when the House of the Legislature is not in session. But even if there is a Legislative Council, then the Governor can issue an ordinance if one of the houses is not in session.
2. The President can promulgate an ordinance only when he sees that such circumstances have arisen that it is necessary to take prompt action.	2. He may promulgate an Ordinance when he is satisfied that such circumstances have now arisen that it is necessary to take immediate action.
3. The President can issue ordinances only on those subjects on which Parliament makes laws. Otherwise an ordinance issued may be invalid if it is not capable of being made by Parliament.	3. The Governor can issue ordinances on only those issues on which the Legislature has the power to make laws. Otherwise an ordinance issued may be invalid, if it is not capable of being made by the legislature.
4. An Ordinance issued by him has the same effect as an Act made by Parliament.	4. The recognition of an ordinance by him is equivalent to an act of the state legislature.
5. He can return an ordinance at any time.	5. He can return an ordinance at any time.
6. His ordinance making power is not voluntary, that means he can make any law or withdraw an ordinance only on the advice of the Council of Ministers headed by the Prime Minister.	6. His ordinance making power is not voluntary that means he can make any law or withdraw an ordinance only on the advice of the council of ministers headed by the chief minister.
7. The Ordinance issued by him should be laid on the Table of both the Houses of Parliament	7. The Ordinance issued by him should be laid on the Table of the Legislature.
8. The ordinance issued by him expires six weeks after the commencement of the session of Parliament. It lapses even earlier if both the Houses of Parliament pass a resolution rejecting it.	8. The ordinance issued by him expires six weeks after the commencement of the session of the State Legislative Assembly. It can lapse even earlier, if the state legislature concurs with its disapproval.
9. No direction is required in making that ordinance.	9. It cannot make an ordinance without the President’s direction in the following three cases if – (1) its presentation in the State Legislature requires the prior approval of the President, (2) if the Governor considers it necessary for the consideration of the President a Bill with similar provisions . (3) If an act of the State Legislature is such that it becomes invalid without the assent of the President.

Ordinance in india President vs Governor

Some judicial matters related to the ordinance

Through the 38th Constitutional Amendment 1975, it was provided that the ordinance issued by the President cannot be challenged in the court. But this provision was abolished by the 44th Constitutional Amendment 1978.

AK Roy Vs Union of India Case – 1982

While hearing this matter, the Supreme Court had said that the ordinance brought by the President is not outside the scope of judicial review.

T. Venkata Reddy Vs. State of Andhra Pradesh Case – 1985

While hearing this matter, the Supreme Court had said that the court can only do judicial review of the process of bringing an ordinance. Not of the substance contained in that Ordinance and not of the object connected with the Ordinance.

DC Wadhwa Vs State of Bihar Case – 1987

While hearing this case, the Supreme Court had said that the Ordinance is a legislative power to be used in exceptional circumstances and not to invoke it whenever it wants. Because if the work is started from the ordinance itself, then what will be the need of common law.

In fact, it happened that between 1967-1981, by re-issuing an ordinance by the Governor of Bihar, about 256 ordinances were issued for fourteen years.

Hope you have understood the ordinance-issuing power of the President and the Governor. Also read other related articles for better understanding.