Judicial Review of Ordinance-Making Power in India: Constitutional Necessity or Executive Overreach

Introduction

The Indian Constitution establishes a system of parliamentary democracy grounded in deliberation, representation, and legislative accountability. Within this framework, Articles 123 and 213 confer upon the President and Governors the authority to promulgate ordinances when the legislature is not in session and immediate action is necessary. An ordinance possesses the same force and effect as a law enacted by the legislature. However, it is issued without debate, committee scrutiny, or voting. This makes the ordinance-making power both powerful and constitutionally delicate.

The framers intended this power to function as an emergency measure, enabling swift legislative response during unforeseen situations. It was not designed as an alternative to regular law-making. Nevertheless, constitutional practice reveals instances where ordinances have been used repeatedly, sometimes re-promulgated without legislative approval. Such practices raise serious concerns regarding separation of powers and democratic accountability[1]. The central question therefore is whether judicial review can effectively prevent executive overreach while preserving the constitutional purpose of ordinance-making.

Constitutional Framework of Ordinance-Making Power

Article 123: Power of the President

Article 123[2] empowers the President to promulgate ordinances when both Houses of Parliament are not in session and circumstances exist that render immediate action necessary. The ordinance has the same force as a parliamentary statute but must be laid before Parliament when it reconvenes. It ceases to operate six weeks after reassembly unless approved.

This structure reveals three essential features: urgency, temporariness, and legislative control. The requirement of “immediate action” indicates that the power is exceptional. The six-week limitation ensures that ordinances cannot continue indefinitely without parliamentary approval. Further, under Article 74[3], the President acts on the aid and advice of the Council of Ministers, meaning the power is exercised by the executive government. Thus, although constitutionally valid, ordinance-making represents executive law-making that must remain subordinate to legislative supremacy.

Article 213: Power of the Governor

Article 213[4] mirrors Article 123 at the state level. It authorizes the Governor to promulgate ordinances when the State Legislature is not in session and immediate action is necessary. Like Article 123, such ordinances must be laid before the legislature and cease to operate within six weeks of reassembly.

An additional limitation exists: where the proposed ordinance would require prior presidential assent if enacted as a bill, the Governor must obtain instructions from the President. This provision preserves federal balance and prevents states from bypassing constitutional requirements.

Together, Articles 123 and 213 create a temporary legislative mechanism. However, the Constitution does not precisely define “immediate necessity,” leaving scope for executive discretion and, potentially, misuse.

III. Historical Misuse and Re-Promulgation

Despite the constitutional safeguards, the ordinance power has not always been exercised strictly as an emergency tool. The most controversial practice has been re-promulgation — the repeated issuance of an ordinance after its lapse without securing legislative approval.

This issue became prominent in Bihar during the 1960s and 1970s, where certain ordinances were reissued for several years.[5] The executive effectively governed through ordinances, bypassing legislative debate. This practice undermined the temporary nature of the power and diluted democratic accountability.

In D.C. Wadhwa v. State of Bihar (1987)[6], the Supreme Court condemned repeated re-promulgation, describing it as a “fraud on the Constitution.” The Court held that the executive cannot use ordinance-making as a substitute for legislation. However, uncertainties remained regarding the scope of judicial review and the consequences of unconstitutional re-promulgation.

Re-promulgation disrupts the constitutional balance by enabling the executive to assume a quasi-legislative role. Since ordinances bypass debate and opposition scrutiny, excessive reliance on them weakens representative democracy. The problem is therefore structural: while the Constitution permits temporary executive legislation, it presumes legislative oversight. Re-promulgation distorts this design.

Judicial Review of Ordinances

The judiciary has played a crucial role in defining constitutional limits on ordinance-making.

In A.K. Roy v. Union of India (1982)[7], the Supreme Court initially held that the President’s satisfaction could be examined on limited grounds. The Court acknowledged that while the power is discretionary, it is not beyond constitutional scrutiny.

The most authoritative pronouncement came in Krishna Kumar Singh v. State of Bihar (2017)[8]. The Supreme Court held that re-promulgation of ordinances without placing them before the legislature is unconstitutional. The Court clarified several principles:

1. The satisfaction of the President or Governor is subject to judicial review.
2. Ordinance-making is not a parallel source of legislation.
3. Re-promulgation without legislative approval violates constitutional morality.
4. Ordinances cease to operate upon lapse and cannot create enduring rights unless validated by legislation.

The judgment reaffirmed legislative supremacy and strengthened separation of powers. It emphasized that the executive cannot repeatedly bypass the legislature under the guise of urgency.

Judicial review thus functions as a constitutional safeguard. While courts do not ordinarily question policy decisions, they may intervene where constitutional limits are breached. The doctrine ensures that ordinance-making remains exceptional rather than routine.

Separation of Powers and Democratic Legitimacy

• The ordinance-making power operates at the intersection of executive and legislative functions. In a parliamentary democracy[9], law-making is expected to involve debate, transparency, and collective decision-making. Ordinances, though legally valid, temporarily suspend this deliberative process.

• Frequent or strategic use of ordinances may weaken democratic legitimacy. It shifts legislative authority toward the executive and reduces opportunities for public scrutiny. Separation of powers does not demand rigid compartmentalization, but it does require institutional balance. When ordinances are used excessively, this balance is disturbed.

• Judicial oversight therefore serves not merely as legal review but as protection of constitutional structure. By scrutinizing misuse, courts reinforce the principle that executive convenience cannot override democratic procedure.

Critical Analysis

While judicial review has imposed meaningful limits, certain challenges remain. The Constitution does not provide objective criteria for determining “immediate necessity.” Courts typically defer to executive judgment unless clear abuse is demonstrated. This creates a grey area where political motivations may influence ordinance-making.

At the same time, completely restricting ordinance power would be impractical. Emergencies, financial crises, or unforeseen developments may require swift legislative action. The solution lies not in eliminating the power but in ensuring its disciplined use.

The judiciary must balance restraint with vigilance. Excessive intervention could risk judicial overreach, while insufficient scrutiny may enable executive dominance. Ultimately, constitutional morality requires that ordinances remain exceptional tools rather than substitutes for legislative debate.

VII. Conclusion

The ordinance-making power under Articles 123 and 213 is a constitutionally sanctioned emergency mechanism designed to address urgent situations during legislative recess. However, historical practices, particularly re-promulgation, have revealed its potential for misuse. Judicial decisions, especially Krishna Kumar Singh[10], have reaffirmed that the power is subject to constitutional limitations and cannot operate as a parallel legislative route.

In a democratic system committed to separation of powers, executive law-making must remain temporary and accountable. The legitimacy of ordinance-making depends not merely on constitutional text but on faithful adherence to its spirit. Judicial review thus plays an indispensable role in preserving parliamentary supremacy and ensuring that the ordinance power remains an emergency valve, not a permanent legislative shortcut.

References

A. Constitutional Provisions

• Constitution of India, 1950, arts. 74, 123, 163, 213.

B. Cases

• K. Roy v. Union of India, (1982) 1 SCC 271 (India).
• C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 (India).
• Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 (India).
• C. Cooper v. Union of India, (1970) 1 SCC 248 (India).

C. Books

• Jain, M.P., Indian Constitutional Law. 8th ed., LexisNexis, 2018.
• Seervai, H.M., Constitutional Law of India. 4th ed., Universal Law Publishing, 1996.
• Basu, D.D., Introduction to the Constitution of India. 23rd ed., LexisNexis, 2018.

D. Reports

• Law Commission of India, 38th Report on the Constitution of India (1968).

E. Journal Articles

• Baxi, Upendra. “The Little Done, the Vast Undone: Some Reflections on Reading Granville Austin’s The Indian Constitution.” Journal of the Indian Law Institute, vol. 9, 1967, pp. 323–430.
• Arora, Balveer. “Ordinance-Making Power in India: A Constitutional Analysis.” Indian Bar Review, vol. 14, no. 2, 1987.

F. Official Sources

• Supreme Court of India, Judgments Portal: https://main.sci.gov.in
• India Code Portal, Ministry of Law and Justice: https://www.indiacode.nic.in

[1] H.M. Seervai, Constitutional Law of India 2085–90 (4^th ed. 1996)

[2] INDIA CONST. Art. 123.

[3] INDIA CONST. Art. 74

[4] INDIA CONST. Art. 213

[5] Upendra Baxi, The Little Done, the Vast Undone: Some Reflections on Reading Granville Austin’s The Indian Constitution, 9 J. Indian L. Inst. 323 (1967).

[6] D.C. Wadhwa v. State of Bihar, (1987) 1 S.C.C. 378 (India).

[7] A.K. Roy v. Union of India, (1982) 1 S.C.C. 271 (India

[8] Krishna Kumar Singh v. State of Bihar, (2017) 3 S.C.C. 1 (India)

[9] M.P. Jain, Indian Constitutional Law 1234–36 (8th ed. 2018)

[10] Krishna Kumar Singh v. State of Bihar, (2017) 3 S.C.C. 1 (India).