When Parliament is not in session and the executive needs to enact a law urgently, the Constitution provides a temporary law-making mechanism — the Ordinance. Under Article 123, the President can promulgate an Ordinance with the same legal effect as an Act of Parliament. The mechanism is borrowed from the Government of India Act 1935 (Section 72) but with specific Indian adaptations. Two structural features dominate: an Ordinance has a maximum life of seven and a half months, and the executive's satisfaction that immediate action is needed is subject to judicial review (limited but real). The Supreme Court's decisions in D.C. Wadhwa (1987) and Krishna Kumar Singh (2017) have substantially constrained the abuse of this power through re-promulgation. Hold the architecture and the case law carefully.
Article 123 — the constitutional text
Article 123(1) provides: "If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require."
Three conditions must be satisfied for an Ordinance to be promulgated:
(i) Both Houses of Parliament must NOT be in session. If either House is in session (the other being adjourned), an Ordinance can still be promulgated if the relevant matter is to be enacted in that other House. But typically, Ordinances are issued during the inter-session period when both Houses are prorogued.
(ii) The President must be satisfied that circumstances exist requiring immediate action. This is the satisfaction requirement. The President's satisfaction is, of course, exercised on the advice of the Council of Ministers under Article 74. So in substance, the satisfaction is the executive's — but the constitutional form is the President's.
(iii) The Ordinance must address a matter on which Parliament has competence to legislate. Article 123(3) explicitly says the Ordinance shall have the same force and effect as an Act of Parliament — but only if Parliament could have validly enacted such a law. An Ordinance cannot do what Parliament cannot do. It cannot violate Fundamental Rights; cannot exceed legislative competence; cannot alter the Constitution.
The President's power to promulgate Ordinances is co-extensive with Parliament's legislative power. The Supreme Court in R.K. Garg v. Union of India (1981) and A.K. Roy v. Union of India (1982) has held that there is no qualitative difference between an Ordinance and an Act of Parliament. An Ordinance is "law" for all purposes — including for Article 21 (procedure established by law for deprivation of life or liberty).
Duration — the seven-and-a-half-month rule
Article 123(2) provides that an Ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament — or earlier if both Houses pass a resolution disapproving it.
The maximum life of an Ordinance is calculated as follows:
Six months — the maximum interval between Parliamentary sessions under Article 85(1). The Constitution requires that no more than six months pass between the last sitting of Parliament in one session and the first sitting of the next session. So an Ordinance promulgated immediately after prorogation could survive for up to six months before Parliament reassembles.
Six weeks — the additional period after Parliament reassembles. Article 123(2)(a) gives Parliament six weeks to convert the Ordinance into an Act, replace it, or disapprove it.
Total maximum: 6 months + 6 weeks = approximately seven and a half months.
The mechanism enforces parliamentary control. Ordinances must be presented to Parliament when it reassembles. Parliament can:
Convert into an Act — by passing a Bill embodying the Ordinance's provisions. The Act takes the place of the Ordinance and operates as an Act from the date of enactment (or as specified).
Allow to lapse — by not acting on it within six weeks of reassembly. The Ordinance simply expires.
Disapprove — by passing a resolution disapproving the Ordinance in both Houses. Disapproval terminates the Ordinance immediately.
Withdraw by the executive — Article 123(2)(b) allows the President to withdraw an Ordinance at any time. This is on the advice of the Council of Ministers, of course.
The same Ordinance-making power exists at the State level under Article 213, with the Governor as the constitutional actor. The duration limits are identical: six months between State Legislative Assembly sessions plus six weeks after re-assembly.
Co-extensive power — what an Ordinance can do
The Supreme Court has consistently held that the Ordinance-making power is co-extensive with Parliament's legislative power. An Ordinance can do anything Parliament could do — except where the Constitution specifies otherwise.
What an Ordinance can do:
Make law on any subject in the Union List (where Parliament has exclusive competence).
Make law on any subject in the Concurrent List (where Parliament shares competence with States).
Amend or repeal existing laws (subject to constitutional limits).
Affect Fundamental Rights — but only to the extent that Parliament could similarly affect them. An Ordinance is subject to Articles 13, 14, 19, 21 etc., just like an Act of Parliament.
Be promulgated to address a situation created by a Supreme Court ruling that strikes down a previous Act.
Operate retrospectively — subject to the same constitutional limits that apply to retrospective legislation by Parliament.
What an Ordinance cannot do:
Make appropriations from the Consolidated Fund of India. Article 114(3) requires that no money be withdrawn from the Consolidated Fund except under appropriation by an Act of Parliament. The word "Act" here was held by the Supreme Court to exclude Ordinances. So budget appropriations cannot be made by Ordinance.
Amend the Constitution. Article 368 requires special procedures (special majority of both Houses; ratification for certain matters) that an Ordinance cannot replicate.
Make law on subjects in the State List — except during a Proclamation of Emergency under Article 352. Normally, the Centre cannot legislate on State subjects; the Ordinance power does not give the executive a backdoor.
Exceed Parliament's legislative competence on any other ground.
The principle from R.K. Garg (1981) and A.K. Roy (1982): the Ordinance is law of the same character as an Act. Whatever Parliament can do, the Ordinance-maker can do; whatever Parliament cannot do, the Ordinance-maker also cannot do.
Judicial review of satisfaction
Article 123(1) requires the President's "satisfaction" that circumstances exist requiring immediate action. Is this satisfaction subject to judicial review?
The historical position (under the Government of India Act 1935 and through the early decades of the Constitution) was that the satisfaction was non-justiciable. The Privy Council in King-Emperor v. Benoari Lal (1944) held that the Governor-General's satisfaction was a matter for the executive alone.
The position evolved. The Supreme Court in S.K.G. Sugar Ltd. v. State of Bihar (1974) said the satisfaction was "purely subjective" and not justiciable. But in later cases — particularly R.K. Garg (1981) and A.K. Roy (1982) — the Court left the question open.
The position consolidated in D.C. Wadhwa v. State of Bihar (1987). The Supreme Court held that whether the constitutional requirement of "necessary to take immediate action" was met IS subject to judicial review. The President's satisfaction is reviewable on grounds of mala fides, manifest arbitrariness, or absence of any material basis. The Court did not substitute its own judgment for the executive's — but reserved the power to strike down Ordinances issued in bad faith or without basis.
The current position: the satisfaction is reviewable but with substantial deference. Courts will not normally second-guess the executive's assessment of urgency. But Ordinances issued in obvious bad faith, or without any basis, can be struck down.
The Supreme Court in Krishna Kumar Singh v. State of Bihar (2017) — discussed below — went further. The Court held that re-promulgation of Ordinances without good reason is itself a fraud on the Constitution and subject to judicial review.
D.C. Wadhwa — the Bihar Ordinance Raj
The most egregious abuse of the Ordinance power occurred in Bihar. Between 1967 and 1981, the Bihar Government promulgated 256 Ordinances. Almost all were re-promulgated repeatedly without ever being placed before the State Legislature for approval. The Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance was kept in force for over 13 years through serial re-promulgation. The Legislature was scheduled to sit for less than six weeks at a time — ensuring that the Ordinances could be re-promulgated immediately after each prorogation.
D.C. Wadhwa, a professor of economics at Pune's Gokhale Institute, documented this practice in detail. He filed a public interest litigation in 1984. The Supreme Court delivered judgment in D.C. Wadhwa v. State of Bihar in December 1986.
The Court did concede that re-promulgation might be legitimate in specific circumstances — for example, when the Legislature has too much business in a session and cannot take up the Ordinance. But routine, mass re-promulgation as a substitute for legislation was struck down.
The Wadhwa judgment marked a constitutional turning point. After 1987, mass re-promulgation declined. But it did not end. Some States continued to re-promulgate Ordinances in attenuated forms. The issue returned to the Supreme Court three decades later.
Krishna Kumar Singh — the consolidating judgment
The 2017 case of Krishna Kumar Singh v. State of Bihar arose from another Bihar Ordinance Raj — the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, repeatedly re-promulgated between 1989 and 1992. A 7-judge bench delivered a unanimous judgment.
Three significant rulings emerged from Krishna Kumar Singh:
One — laying before the Legislature is mandatory. Article 123(2) requires that Ordinances be laid before both Houses of Parliament. The Court held this is not a procedural requirement but a constitutional duty. Failure to lay an Ordinance vitiates its very existence.
Two — the satisfaction underlying re-promulgation is reviewable. When an Ordinance is re-promulgated, the executive must demonstrate that the urgency continues. Routine re-promulgation as a substitute for legislation cannot satisfy this requirement.
Three — rights and liabilities under an Ordinance. The Court held that Ordinances do not create permanent rights and liabilities. When an Ordinance lapses (whether by efflux of time, disapproval, or non-conversion into Act), rights and liabilities created under it generally lapse too — unless they are of an "irreversible" nature.
The combined effect of D.C. Wadhwa and Krishna Kumar Singh is to make routine re-promulgation constitutionally untenable. Ordinances must be presented to the Legislature; the urgency must be genuine; serial re-promulgation without legislative engagement is unconstitutional.
What students must hold
Six points carry the weight. One, Article 123 — the President can promulgate Ordinances when (a) both Houses of Parliament are NOT in session, and (b) the President is satisfied that immediate action is necessary. The President's satisfaction is exercised on Council of Ministers' advice.
Two, maximum life of an Ordinance: 6 months (between sessions) + 6 weeks (after reassembly) = approximately seven and a half months. Must be presented to Parliament within six weeks of reassembly.
Three, Ordinance power is co-extensive with Parliament's legislative power. An Ordinance can do anything Parliament can do — make law on Union or Concurrent List subjects, repeal existing laws, operate retrospectively. CANNOT make appropriations from the Consolidated Fund (Article 114(3)) or amend the Constitution (Article 368).
Four, Article 213 gives the same power to the State Governor when the State Legislature is not in session. Same duration limits (6 months + 6 weeks). Same requirements for laying.
Five, judicial review: D.C. Wadhwa v. State of Bihar (1987) — repeated re-promulgation without legislative engagement is "a fraud on the Constitution." Krishna Kumar Singh v. State of Bihar (2017) — 7-judge bench — laying before the Legislature is mandatory; satisfaction underlying re-promulgation is reviewable; rights under lapsed Ordinances generally lapse.
Six, Ordinances are "law" for the purposes of Article 21 (procedure established by law). They are subject to Fundamental Rights (Article 13) and to all other constitutional limits applicable to ordinary legislation. For more, see President's Assent and Council of Ministers.