Subject: Indian Polity & Governance
Sub-area: Executive — President and Governor Powers
Difficulty: Medium
Weightage: Moderate (1–2 Prelims + Mains essay component)
EXAMINER REASONING
Trap: Believing ordinances have the same legal effect as Acts of Parliament — they do, but they are temporary and require parliamentary approval.
Most confused: President's ordinance power (Article 123) vs Governor's (Article 213) — identical but Governor needs Union Government's approval in certain cases.
Key anchor: Article 123 (President) and Article 213 (Governor) — ordinances when Parliament/Assembly is NOT in session.
Current affairs hook: Ordinance route used extensively (2024–25) — Waqf Amendment Ordinance, Delhi Services Ordinance; SC's repeated strictures on ordinance Raj.
Mains hinge: "Ordinance-making power has been reduced to a parallel legislative mechanism. Critically evaluate the constitutional intent versus practice."
Core Concept
Article 123 — President's Ordinance Power
President can promulgate ordinance when both Houses are not in session (or one House not in session for a bill originating there).
Same force and effect as an Act of Parliament.
Must be laid before both Houses when they reassemble.
Ceases to operate 6 weeks after reassembly (or earlier if disapproved by resolutions).
Can be withdrawn by President at any time.
Article 213 — Governor's Ordinance Power
Similar to Article 123.
Restrictions: Governor cannot promulgate without instructions from President if:
Bill would have required President's prior sanction
Bill requires reservation for President's consideration
State law under Article 31A requires concurrent consideration
State subject involving list inconsistency
Judicial Review
R.C. Cooper v. UOI (1970) — Bank Nationalization Case: Satisfaction must be based on material; court can examine if satisfied.
D.C. Wadhwa v. Bihar (1987): Promulgation of 256 ordinances in Bihar — SC held that re-promulgation of lapsing ordinances is fraud on Constitution.
Krishna Kumar Singh v. Bihar (2017): SC reaffirmed Wadhwa — repeated re-promulgation unconstitutional; legislative power cannot be usurped.
Key Facts
Maximum life of ordinance: 6 months + 6 weeks (if reassembly happens late)
Governor's ordinance: same limitations as Article 213
"Ordinances can be issued on any subject, including those outside Parliament's legislative competence." → FALSE. Ordinance power is co-extensive with Parliament's legislative power (Article 123(2)).
"Governor can issue ordinance without President's approval for bills requiring prior sanction." → FALSE. Article 213(1) proviso explicitly bars this.
"The President can promulgate an ordinance only when both Houses are in session." → FALSE. It requires at least one House to not be in session.
"An ordinance cannot be challenged in court on grounds of mala fide." → FALSE. RC Cooper (1970) established judicial review of satisfaction.
Current Affairs Hook
2024–25 Trends: Government used ordinance route for Waqf Amendment (2024), Delhi Services (2023); SC criticized re-promulgation of several state ordinances.
Manipur Crisis (2024): Governor promulgated ordinances despite Assembly standing adjourned sine die — constitutional challenge pending.
Proposed Reform: Law Commission's 258th Report suggested limiting ordinances to emergencies only, adding cooling-off period.
Interlinkages
President vs Governor: Compare legislative powers — Governor more restricted
Emergency Provisions: Article 356 (President's Rule) — Governor issues ordinances on behalf of President
Parliamentary Sovereignty: Ordinance power inherent to Westminster systems but India's constitution repugnancy doctrine (Article 254) limits state executive ordinances
Separation of Powers: Ordinance is executive usurpation of legislative domain — D.C. Wadhwa prevents this
Judicial Review: Compare with Article 13 — ordinances are "law" for Article 13 purposes
Common Mistakes
Thinking both Houses must not be in session (only one House not in session suffices)
Believing ordinances lapse upon expiry of 6 weeks regardless of Assembly sitting (they lapse 6 weeks after reassembly)
Confusing Governor's ordinance restrictions with simple requirement for President's concurrence
Assuming ordinance matters cannot be judicial reviewed (they can — on mala fides, satisfaction basis)
Revision Snapshot
Article 123 (President) / Article 213 (Governor)
Ordinance = force of Act — requires both Houses not in session
Life: 6 weeks after reassembly — repeated re-promulgation unconstitutional
D.C. Wadhwa (1987): 256 ordinances — fraud on Constitution