Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.
An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists. Thus, the following limitations exist with regard to the Ordinance making power of the executive:
- Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
- Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
- Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
The largest number of Ordinances was promulgated in 1993, and there has been a decline in the number of Ordinance promulgated since then. However, the past year has seen a rise in the number of Ordinances promulgated.
- An ordinance may be issued by the President only when one House is in session.
- An ordinance may be made under circumstances which require immediate action.
- An ordinance can be made only on subjects on which Parliament can made laws and is subject to the limitations, to which a Parliamentary law is subjected.
- An ordinance needs to be present before the Houses of Parliament who reassembles. An ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament.
If the Houses reassemble on different date the period of six weeks is calculated from the later of those dates. Without being approved by the Parliament and ordinance can last for a maximum period of six months and six weeks. All acts done and completed under an unapproved ordinance will lapse.
The President may withdraw an ordinance at any time. However, the President exercises the power on the advice of the Council of Ministers headed by the Prime Minister.
An ordinance may have retrospective effect and may be modify repeal any act of Parliament or even another ordinance. It may also amend or alter a tax law but never can be used to amend the Constitution. This unusual power has been given to the President, so that the Executive can deal with a situation of urgency.