Ordinance-Making Power of the President and the Governor

The President (Article 123) and the Governor (Article 213) can make an ordinance, a temporary law with the same force as an Act, only when the legislature is not in session and they are satisfied that circumstances require immediate action. Every ordinance must be laid before the legislature and lapses six weeks after it reassembles unless it is replaced by an Act. Since Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court treats this as a limited, conditional power that is open to judicial review, and repeated re-promulgation is a fraud on the Constitution.

This explainer is written for B.A. LL.B. and LL.B. students preparing for Constitutional Law papers, and for any citizen who reads in the newspaper that "the State has promulgated an ordinance" and wonders how a law can be made without a vote. The topic appears in almost every semester examination and in judicial service papers, so it pays to know the text and the cases precisely.

Where does the power come from?

The source is the Constitution itself. There is no separate Act or set of Tamil Nadu rules that creates the power. Two articles do the work:

• Article 123 (in Chapter III of Part V, "Legislative Powers of the President"): the President may promulgate an ordinance at any time except when both Houses of Parliament are in session.
• Article 213 (in Part VI): the Governor may promulgate an ordinance at any time except when the Legislative Assembly (and the Legislative Council, where a State has one) is in session. Tamil Nadu has a single House, so in our State the relevant condition is that the Assembly is not sitting.

In both articles, the President or Governor must be "satisfied that circumstances exist which render it necessary" to take immediate action. In practice, as with other powers of the President and Governor, this is exercised on the advice of the Council of Ministers.

What conditions and limits does the text impose?

1. Legislature not in session. An ordinance cannot be made while the House is sitting.
2. Satisfaction about immediate action. There must be circumstances that make immediate action necessary.
3. Same subject limits as the legislature. Under Article 123(3), an ordinance is void to the extent it makes a provision Parliament could not validly enact. Article 213(3) applies the same rule to a State ordinance. So a Governor cannot touch a Union List subject, and no ordinance can violate fundamental rights.
4. Laying and lapse. The ordinance must be laid before the legislature. It ceases to operate six weeks after the legislature reassembles, or earlier if it is disapproved (for a central ordinance, by resolutions of both Houses; for a State ordinance, by a resolution of the Assembly, agreed to by the Council where one exists). If the two Houses reassemble on different dates, the six weeks run from the later date.
5. Withdrawal. The President or Governor may withdraw it at any time.

Because Articles 85(1) and 174(1) say that six months shall not intervene between the last sitting of one session and the first sitting of the next, an ordinance in the ordinary course cannot survive much beyond six months and six weeks unless the legislature converts it into an Act.

The extra proviso for Governors

Article 213(1) adds a proviso. The Governor cannot promulgate an ordinance without instructions from the President if a Bill with the same provisions would have needed the President's previous sanction for introduction, or would have been reserved for the President's consideration, or would have been invalid without the President's assent. A Governor's ordinance made on such instructions is treated as a reserved and assented State Act for the purposes of repugnancy on Concurrent List subjects.

How did the Supreme Court shape the power?

A.K. Roy v. Union of India (decided 28 December 1981)

The challenge arose from the National Security Ordinance. The majority held that the power under Article 123 is legislative, not executive, and that an ordinance is "law" for the purposes of Article 21. So a person can be deprived of liberty under an ordinance if it is otherwise valid. On whether the President's satisfaction is justiciable, the Court did not give a final answer, but said such a challenge cannot be treated as a purely political question and that judicial review was arguably not totally excluded after the Forty-fourth Amendment.

The Forty-fourth Amendment

For a period in the 1970s, Articles 123 and 213 carried a clause (4) dealing with the President's and Governor's satisfaction. The Constitution (Forty-fourth Amendment) Act, 1978 omitted clause (4) from Article 123 (section 16) and from Article 213 (section 27). The Supreme Court in Krishna Kumar Singh relied on this deletion when it held that satisfaction is open to judicial review. If an examiner asks about the earlier clause, check its exact wording in the Thirty-eighth Amendment text before quoting it.

D.C. Wadhwa v. State of Bihar ((1987) 1 SCC 378)

Dr. D.C. Wadhwa's research showed that Bihar had kept ordinances alive for years by re-issuing them after each session without placing them before the legislature. A five-judge Constitution Bench led by Chief Justice P.N. Bhagwati struck down the re-promulgated ordinances under challenge and condemned the practice as a colourable exercise of power. The point students should carry away is simple: the executive cannot use ordinances as a standing substitute for legislation.

Krishna Kumar Singh v. State of Bihar (decided 2 January 2017)

A seven-judge bench, by a 5:2 majority with the main opinion by Justice D.Y. Chandrachud, decided a dispute about Sanskrit school teachers in Bihar whose schools were taken over by a series of ordinances from 1989 that were never laid before the legislature. The majority held:

• Laying an ordinance before the legislature is a mandatory constitutional obligation. Failure to lay it is a serious constitutional infraction.
• Re-promulgation of ordinances without placing them before the legislature is a fraud on the Constitution and a subversion of democratic legislative processes.
• The satisfaction of the President or Governor is not immune from judicial review, particularly after the Forty-fourth Amendment. The test is whether the satisfaction rests on relevant material; the court does not weigh the adequacy of that material, but checks for fraud on power or oblique motive.
• The "enduring rights" theory from earlier Constitution Bench decisions (the Bhupendra Kumar Bose and T. Venkata Reddy cases) does not state the correct position. Whether effects survive after an ordinance lapses depends on construction, applying a test of public interest and constitutional necessity, including whether the consequences have become irreversible.

On the facts, the teachers did not become government employees, but salaries already paid were not to be recovered. Chief Justice T.S. Thakur wrote a separate concurring opinion and Justice Madan B. Lokur dissented on some points, including whether laying is mandatory. For your exam answer, the majority view is the law.

What about Tamil Nadu and the Madras High Court?

Article 213 works in Tamil Nadu exactly as the text says, and the Supreme Court's rulings bind every court in the State. One recent Madras High Court episode is a useful lesson in timing. On 16 November 2022, a bench of Acting Chief Justice T. Raja and Justice D. Krishnakumar allowed online gaming companies to withdraw their petitions against the State's ordinance on online gambling and online games, since the State told the court the ordinance was yet to be notified. The petitioners were given liberty to file again once it took effect. The practical point: a challenge to an ordinance should be brought when it is actually in operation.

If you are writing a project on a specific Tamil Nadu ordinance, take the text and date from the Tamil Nadu Government Gazette or the Assembly's records rather than a news report, and check whether it was later replaced by an Act.

How should you write this in an exam?

1. Open with the definition and the two articles (Articles 123 and 213), in two lines.
2. List the conditions: recess, satisfaction, competence, laying, six weeks from reassembly, withdrawal. Mention the Governor's proviso separately.
3. Explain the amendment: clause (4) omitted by the Forty-fourth Amendment in 1978.
4. Trace the cases in order: A.K. Roy (ordinance is law, power is legislative), D.C. Wadhwa (re-promulgation struck down), Krishna Kumar Singh (laying mandatory, re-promulgation a fraud, satisfaction reviewable, enduring rights theory rejected).
5. Close with a short evaluation: the power exists for emergencies between sessions, and the legislature, not the executive, remains the primary lawmaker.

A student in Nagercoil who sets out these five steps with correct case names and years will usually score well above one who writes three pages of general commentary. If you would like to discuss constitutional topics with faculty, see our programmes.

Sources

• Constitution of India, Article 123: text of the President's ordinance power.
• Constitution of India, Article 213: text of the Governor's ordinance power and proviso.
• Constitution of India, Article 85 and Article 174: the six-month gap rule between sessions.
• Constitution (Forty-fourth Amendment) Act, 1978: sections 16 and 27 omit clause (4) of Articles 123 and 213.
• A.K. Roy v. Union of India: full text of the 1981 Supreme Court judgment.
• Krishna Kumar Singh v. State of Bihar: full text of the 2017 seven-judge bench judgment.
• Supreme Court Observer: plain English summary of the Krishna Kumar Singh judgment.
• LiveLaw report, 16 November 2022: Madras High Court order on the Tamil Nadu online gaming ordinance petitions.