Ordinance-Making Power in India (Articles 123 & 213)

By Dooit UPSC expert · 29 August 2026 · 11 min read

The ordinance is the most misunderstood instrument in our Constitution — a law made by the executive, without Parliament, that carries the full force of a statute. Get its logic right and a whole cluster of Prelims and Mains questions falls into place. Get it hazy, and you will keep confusing duration, scope and the case law that governs it.

In three decades of mentoring aspirants, I have seen this topic decide marks in both papers. Prelims loves the precise numbers — which Article, how long, whose satisfaction. Mains loves the tension it embodies: an emergency law-making power lodged in a parliamentary democracy that is supposed to make laws through debate. Master both faces and you never lose a mark here. Let us build it from first principles, the way a topper actually understands it, not the way a hurried reader memorises it.

What an ordinance actually is

An ordinance is a law promulgated by the executive when the legislature is not sitting. The Constitution vests this power in the President at the Union level (Article 123) and in the Governor at the state level (Article 213). It exists for one honest reason: legislatures do not sit year-round, yet situations arise — a court verdict that creates a legal vacuum, a financial emergency, a sudden regulatory gap — where waiting months for the next session would cause real harm. The ordinance lets the government act now and seek the legislature's approval later.

The single most important idea to fix in your mind: an ordinance is a temporary law, not a permanent one. It has the same force and effect as an Act of Parliament while it lives, but it is always on a clock. It is co-extensive with the legislative power of the body it substitutes — the President cannot make an ordinance on a subject on which Parliament cannot legislate, and a Governor cannot ordain on a subject outside the State List and Concurrent List. This is why an ordinance can never be used to amend the Constitution: Parliament amends the Constitution under Article 368, and the ordinance route simply does not reach there.

Article 123 — the President's power, decoded

Read Article 123 slowly and you will find four conditions built into it. First, the power arises only when either House of Parliament is not in session — if both Houses are sitting, there is no room for an ordinance, because Parliament itself can legislate. Note the wording: it is enough that one House is not in session. Second, the President must be satisfied that circumstances exist which render it necessary to take immediate action. Third, the ordinance has the same force as an Act. Fourth, it must be laid before Parliament and has a limited life.

Now the constitutional-realism layer that beginners miss. The President never exercises this "satisfaction" personally. Under Article 74, the President acts on the aid and advice of the Council of Ministers. So in practice the ordinance is a decision of the Union Cabinet, formally promulgated in the President's name. When a question asks "who promulgates an ordinance", the technically correct answer is the President; when it asks who really decides, it is the Council of Ministers. UPSC has tested both framings.

How long does an ordinance live?

This is the number Prelims examiners love. An ordinance must be laid before both Houses of Parliament when they reassemble, and it ceases to operate at the expiry of six weeks from the reassembly of Parliament. If the two Houses are summoned to reassemble on different dates, the six weeks is counted from the later of the two dates. Parliament can also disapprove it earlier by passing resolutions in both Houses, in which case it dies immediately on the second resolution. And the President can withdraw it at any time.

From these rules flows the famous maximum-life calculation. The Constitution says the gap between two sessions of Parliament cannot exceed six months (Article 85). So the longest an ordinance can survive is six months (the session gap) plus six weeks (after reassembly) — a little over seven and a half months. Memorise the derivation, not just the answer: if you can reconstruct why it is "six months plus six weeks", you will never fumble a twisted version of the question.

Article 213 — the Governor's power and its extra leash

The Governor's ordinance-making power mirrors the President's, with one crucial difference you must remember: the Governor cannot promulgate an ordinance without instructions from the President in three situations. First, if a Bill containing the same provisions would have required the President's prior sanction to be introduced in the state legislature. Second, if the Governor would have deemed it necessary to reserve a Bill with the same provisions for the President's consideration. Third, if an Act of the state legislature with the same provisions would have been invalid without the President's assent.

The reason is federal balance. These three categories are precisely the situations where a state law touches Union interests, and the Constitution does not want a Governor's ordinance to quietly do what a state Bill could not have done without Central clearance. When a question contrasts Articles 123 and 213, this "three-case Presidential instruction" is almost always the intended distinction.

The case law that gives this topic its bite

Ordinances would be a dry, factual topic were it not for a line of judgments that turned them into a live constitutional debate. Know these four names and what each settled — this is where Mains marks are earned.

R.C. Cooper v. Union of India (1970)

In the bank-nationalisation case, the Supreme Court held that the President's decision to promulgate an ordinance is not immune from judicial review. The satisfaction can be challenged on the ground that it was based on malafide considerations or was a colourable exercise of power. This punctured the idea that an ordinance is a purely political act beyond the reach of courts.

The 38th and 44th Amendments

Politics pushed back. The 38th Constitutional Amendment (1975) made the President's satisfaction "final and conclusive" and beyond judicial scrutiny. But this was reversed by the 44th Constitutional Amendment (1978), which restored the courts' power to examine whether the satisfaction was validly formed. This little sequence — power questioned, power immunised, immunity removed — is a favourite of examiners who like to test whether you know the constitutional back-and-forth, not just the current position.

D.C. Wadhwa v. State of Bihar (1987)

This is the landmark that exposed the ordinance's ugliest abuse. The state of Bihar had kept a set of ordinances alive for years by re-promulgating them again and again without ever placing them before the legislature — in one instance the same ordinance was re-issued dozens of times over more than a decade. The Supreme Court called this an "ordinance raj" and held that re-promulgation to bypass the legislature is a fraud on the Constitution. Ordinances are meant to meet an emergency, not to become a parallel, permanent mode of law-making.

Krishna Kumar Singh v. State of Bihar (2017)

Three decades later a seven-judge Constitution Bench settled the matter decisively. It reaffirmed D.C. Wadhwa and held once again that repeated re-promulgation is a fraud on the Constitution and a subversion of democratic legislative processes. Just as importantly, the Court clarified that laying the ordinance before the legislature is mandatory, not optional — the obligation is a constitutional requirement, and the failure to place it before the House is itself unconstitutional. The Bench also grappled with the difficult question of what happens to rights and liabilities created by an ordinance that later lapses, holding that the consequences must be judged on the "test of public interest and constitutional necessity" rather than assuming everything done under it automatically survives. For UPSC, the takeaways are two crisp lines: seven-judge bench, and re-promulgation as a routine substitute for legislation is unconstitutional.

Why ordinances matter — and where the criticism lies

Used honestly, the ordinance is a legitimate tool of responsive government. A court strikes down a provision and leaves millions in legal limbo; a season of financial volatility demands a quick statutory response; a regulatory gap threatens public safety. In such moments, waiting for the next session is not prudence, it is paralysis. The framers included this power deliberately, aware that a parliamentary democracy still needs a mechanism to act between sessions.

The criticism is equally real, and Mains rewards a balanced view. Ordinances let the executive bypass legislative debate, scrutiny and the committee system. They can be timed cynically — promulgated the moment a session ends. When a controversial ordinance is later rushed through Parliament under the threat of it lapsing, the "approval" can be more ritual than deliberation. And the temptation to govern by ordinance, rather than to build a majority for a Bill, is a standing threat to the primacy of the legislature. The healthy constitutional position, endorsed by the courts, is simple: the ordinance is a bridge across an emergency, never a highway around Parliament.

How to lock this down for the exam

Turn understanding into recall with a tight revision routine. First, keep a one-page comparison of Articles 123 and 213 — the three-case Presidential-instruction rule for Governors is the single most tested distinction. Second, over-learn the duration logic until you can derive "six months plus six weeks" from Article 85, rather than parroting the number. Third, commit the four-case arc to memory as a story, not a list. Fourth, practise linking the topic to current affairs: whenever a real ordinance is in the news, ask which Article, whether a session was on, and whether it was laid and approved in time. That is exactly the connect-the-dots habit I keep urging aspirants to build, the same one we discuss in how to read the newspaper for UPSC.

If you want this to actually stick, do not just read it — test yourself on it within twenty-four hours and again after a week. Retrieval, not re-reading, is what moves a fact from "I recognise it" to "I can produce it under exam pressure." A handful of well-aimed questions on ordinance duration, the Governor's special restriction and the Krishna Kumar Singh holding will do more for you than another passive read of the same paragraph.

Dooit turns exactly this kind of topic into active practice. Ask our AI to explain Article 123, and it answers in the UPSC structure — overview, explanation, key points, examples, relevance and related topics — then throws you targeted MCQs on duration, re-promulgation and the case law so the facts move from your notes into your memory. That is the difference between reading about ordinances and being ready to answer on them.