Definition
A law promulgated by the President (at the Union level) or Governor (at the State level) when Parliament or the State legislature is not in session, having the same force and effect as a legislative enactment.
An ordinance is executive legislation — law made by the executive in the absence of the legislature. Under Article 123, the President may promulgate an ordinance when Parliament is not in session and there is an immediate need for law. Under Article 213, the Governor has the same power for State legislation. An ordinance has the same force and effect as an Act of Parliament, but it is temporary — it must be approved by Parliament within 6 weeks of reassembly or it lapses. The ordinance-making power is not unlimited; it is subject to the same restrictions as legislative power and cannot override the Constitution or fundamental rights.
Statutory Definition
Article 123(1), Constitution of India: 'If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.'
Etymology & Origin
From Latin 'ordinare' (to set in order, to arrange) via Old French 'ordonnance' (an edict). An ordinance is an executive decree — an arrangement for governance made by the executive authority in emergency circumstances.
Full Legal Analysis
Ordinance: Law in a Hurry
Ordinances are the executive’s tool for urgent legislation when Parliament is not available. They fill the legislative vacuum between sessions, allowing the government to respond to immediate needs without waiting for Parliament to be convened. But ordinances carry the seeds of their own limitation: they lapse if not approved by Parliament, and they cannot be used to routinely substitute for parliamentary legislation.
Constitutional Conditions
For valid promulgation of an ordinance: (a) Parliament/State legislature must not be in session (both Houses must be not in session — if one House is in session, no ordinance can be promulgated for parliamentary legislation); (b) the President/Governor must be 'satisfied' that immediate action is necessary — this satisfaction is justiciable for mala fide exercise (D.C. Wadhwa v. State of Bihar AIR 1987 SC 579); and (c) the ordinance cannot be ultra vires the Constitution — it must be within the legislative competence of Parliament/Legislature.
Duration and Lapse
An ordinance lapses: (a) 6 weeks after Parliament/Legislature reassembles (unless approved earlier); (b) if resolutions disapproving it are passed by both Houses; or (c) when the President/Governor withdraws it. If an ordinance lapses without being replaced by legislation, the law reverts to what it was before the ordinance. Rights accrued under the ordinance during its operation generally remain (the lapse is not retrospective unless specified).
Ordinance Raj: Judicial Restraint
In D.C. Wadhwa v. State of Bihar AIR 1987 SC 579, the Supreme Court condemned the practice of re-promulgating the same ordinance repeatedly (44 times in Bihar's case) without parliamentary approval — calling it a 'fraud on the Constitution.' The Court held that while ordinances may be re-promulgated in extraordinary circumstances, systematic re-promulgation to avoid parliamentary scrutiny is unconstitutional. In Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1, a seven-judge Bench elaborated that the President/Governor's satisfaction is justiciable for fraud or mala fides.
“An ordinance is not a substitute for legislation — it is a bridge across the gap between sessions. Using it to avoid Parliament is a fraud on the Constitution; D.C. Wadhwa exposed and condemned this practice.”
This Term in Indian Statutes
Constitution of India, 1950
"If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require."
Presidential ordinance-making power when Parliament is not in session — immediate necessity required
Constitution of India, 1950
"An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament."
Ordinance has same force as Act of Parliament — but limited to 6 weeks from reassembly
