An ordinance is a law that is issued by the President of India or the Governor of a state when Parliament or the State Legislature is not in session. It is a special power given to them to make laws in urgent situations when immediate action is required.
An ordinance differs from a regular law in the following ways:
Duration: An ordinance remains valid for six weeks from the date on which the next session begins.
Necessity: Ordinances are brought in situations where there is an urgent need for a law, when one cannot wait for the normal legislative process.
Legislative Impact: If the Parliament or the State Legislature does not validate the ordinance within the specified time, it becomes void.
Ordinance-making power and constitutional recognition
Article 123 and Article 213 of the Indian Constitution give power to The President of India and the Governor of a state to issue an ordinance respectively.
These provisions state that an ordinance will have the same effect as a law passed by the Parliament or state legislature.
What happens when an ordinance lapses?
When an ordinance fails for whatever reason, the government has to re-promulgate it. The aspect of re-ordinance has been a matter of legal debate over the years. Those who support re-ordinance believe that it enables the government to react to an urgent issue, thereby ensuring stable governance. On the other hand, critics argue that the practice of re-ordinance ignores legislative scrutiny and proper debate.
In Krishna Kumar Singh v. State of Bihar case, Supreme Court observed that “re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law-making authority in a parliamentary democracy. Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors.”
Do other parliamentary democracies around the world have a similar mechanism?
In various countries, the executive has the power to issue temporary legislation but such laws are subject to parliamentary oversight. Ordinances are called ‘statutory instruments’ In the United Kingdom and ‘regulations’ in nations like Canada, Australia and New Zealand.