Anandita Uppal & Anshi Gandhi, Jindal Global Law School
ABSTRACT
The ordinance-making power under Articles 123 and 213 of the Indian Constitution allows the executive to enact laws in urgent situations when the legislature is not in session. However, the improper use of this power, particularly through re-promulgation, raises serious constitutional concerns. This paper examines the historical context and intent behind this power, analysing key judicial rulings that define the limits of executive discretion and the role of judicial review. While ordinance-making is necessary, the study asserts that its use must be tightly regulated to maintain the constitutional balance between the executive and the legislature.
Introduction
The ordinance-making power, enshrined in Articles 1231 and 2132 of the Indian Constitution, is designed as a mechanism for the executive branch to enact temporary laws in urgent situations when the legislature is not in session. Originally intended as an exceptional measure, this power has become a focal point for debate regarding its application and the implications for the fundamental structure of Indian democracy. As the frequency of ordinances and their re-promulgation has increased, concerns have emerged over whether this power has deviated from its constitutional intent, leading to potential executive overreach and a diminishment of parliamentary supremacy.
Article 123 allows the President to promulgate ordinances when Parliament is not in session and when immediate action is necessary, as determined by the Council of Ministers. Similarly, Article 213 permits Governors to issue ordinances under comparable conditions when state legislatures are not in session. Both provisions include safeguards to prevent abuse, notably the requirement that ordinances must be approved by the respective legislature within a limited timeframe.
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