PPT: Ordinance Making Power of the President UPSC Notes | EduRev

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Ordinance-making Power of the President
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Ordinance-making Power of the President
Ordinance-making Power of the President
• Article 123 of the Constitution empowers the President to 
promulgate ordinances during the recess of Parliament. These 
ordinances have the same force and effect as an act of 
Parliament, but are in the nature of temporary laws.
• The ordinance-making power is the most important legislative 
power of the President. It has been vested in him to deal with 
unforeseen or urgent matters.
Page 3


Ordinance-making Power of the President
Ordinance-making Power of the President
• Article 123 of the Constitution empowers the President to 
promulgate ordinances during the recess of Parliament. These 
ordinances have the same force and effect as an act of 
Parliament, but are in the nature of temporary laws.
• The ordinance-making power is the most important legislative 
power of the President. It has been vested in him to deal with 
unforeseen or urgent matters.
Ordinance-making Power of the President
?The exercises of this power is subject to the following four limitations:
1. He can promulgate an ordinance only when both the Houses of 
Parliament are not in session or when either of the two Houses of Parliament 
is not in session. An ordinance can also be issued when only one House is in 
session because a law can be passed by both the Houses and not by one 
House alone. An ordinance made when both the Houses are in session is 
void. Thus, the power of the President to legislate by ordinance is not a 
parallel power of legislation.
Page 4


Ordinance-making Power of the President
Ordinance-making Power of the President
• Article 123 of the Constitution empowers the President to 
promulgate ordinances during the recess of Parliament. These 
ordinances have the same force and effect as an act of 
Parliament, but are in the nature of temporary laws.
• The ordinance-making power is the most important legislative 
power of the President. It has been vested in him to deal with 
unforeseen or urgent matters.
Ordinance-making Power of the President
?The exercises of this power is subject to the following four limitations:
1. He can promulgate an ordinance only when both the Houses of 
Parliament are not in session or when either of the two Houses of Parliament 
is not in session. An ordinance can also be issued when only one House is in 
session because a law can be passed by both the Houses and not by one 
House alone. An ordinance made when both the Houses are in session is 
void. Thus, the power of the President to legislate by ordinance is not a 
parallel power of legislation.
Ordinance-making Power of the President
2. He can make an ordinance only when he is satisfied that the 
circumstances exist that render it necessary for him to take immediate 
action. 
In Cooper case (1970), the Supreme Court held that the President’s 
satisfaction can be questioned in a court on the ground of malafide. 
The 38th Constitutional Amendment Act of 1975 made the President’s 
satisfaction final and conclusive and beyond judicial review. But, this 
provision was deleted by the 44th Constitutional Amendment Act of 1978. 
Thus, the President’s satisfaction is justiciable on the ground of malafide.
Page 5


Ordinance-making Power of the President
Ordinance-making Power of the President
• Article 123 of the Constitution empowers the President to 
promulgate ordinances during the recess of Parliament. These 
ordinances have the same force and effect as an act of 
Parliament, but are in the nature of temporary laws.
• The ordinance-making power is the most important legislative 
power of the President. It has been vested in him to deal with 
unforeseen or urgent matters.
Ordinance-making Power of the President
?The exercises of this power is subject to the following four limitations:
1. He can promulgate an ordinance only when both the Houses of 
Parliament are not in session or when either of the two Houses of Parliament 
is not in session. An ordinance can also be issued when only one House is in 
session because a law can be passed by both the Houses and not by one 
House alone. An ordinance made when both the Houses are in session is 
void. Thus, the power of the President to legislate by ordinance is not a 
parallel power of legislation.
Ordinance-making Power of the President
2. He can make an ordinance only when he is satisfied that the 
circumstances exist that render it necessary for him to take immediate 
action. 
In Cooper case (1970), the Supreme Court held that the President’s 
satisfaction can be questioned in a court on the ground of malafide. 
The 38th Constitutional Amendment Act of 1975 made the President’s 
satisfaction final and conclusive and beyond judicial review. But, this 
provision was deleted by the 44th Constitutional Amendment Act of 1978. 
Thus, the President’s satisfaction is justiciable on the ground of malafide.
Ordinance-making Power of the President
3. His ordinance-making power is coextensive as regards all 
matters except duration, with the law-making powers of the 
Parliament. This has two implications:
(a) An ordinance can be issued only on those subjects on which 
the Parliament can make laws.
(b) An ordinance is subject to the same constitutional limitation as 
an act of Parliament. Hence, an ordinance cannot abridge or take 
away any of the fundamental rights.
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