Navigating Constitutional Frontiers: Analysing Ordinance Making Powers in India

The authority to promulgate ordinances is entrusted to the President and the State Governor, respectively, under Article 123 and Article 213 of the Indian Constitution. This authority is only meant to be used as an interim remedy in cases of extreme urgency while the legislature of state or union isn’t in session. When the legislature reconvenes, ordinances lapse after six weeks. Ordinances have become more and more useful as a parallel legislative technique as the efficiency of the Parliament is decreasing. Ordinances were the primary means of government in the state of Bihar for a little over fifteen years. However, the legislature is granted the authority to enact laws by the constitution, and this authority is compromised by the frequent enactment of ordinances. Ordinances have been historically seen to be exempt from judicial review, with an exception of instances in which they infringed fundamental rights. This stance persisted from Indian law prior to independence, till Independence, when in 2017 the frequent promulgation of ordinances was deemed to be the constitutional subversion. Ordinances are no longer declared void upon re-promulgation, excepting exceptional situations. Hence, this article explores & demonstrates the constitutional need for Ordinance making power, evaluates the efficacy of the decision of the court in closing historical gaps, explores the role of state intervention in undermining the constitutional authority & scope of judicial review.