The President's Ordinance-making power under Article 123 is an executive instrument designed to address legislative urgency when Parliament is not in session, yet it carries significant constitutional boundaries that define its reach and validity.
An Ordinance has the same force and effect as an Act of Parliament. Consequently, it can amend, repeal, or modify any existing Central Act, provided the subject matter falls within Parliament's legislative competence. This makes the Ordinance a potent, if temporary, legislative tool.
An Ordinance, like any ordinary legislation, cannot abridge Fundamental Rights guaranteed under Part III of the Constitution. It is subject to judicial review on grounds of unconstitutionality, and courts have struck down Ordinances that violated fundamental rights. This constraint prevents executive overreach through the Ordinance route.
An Ordinance can be given retrospective effect, meaning it may come into force from a date prior to its promulgation. This is constitutionally permissible as long as it does not violate Fundamental Rights or other constitutional provisions, such as the prohibition on retrospective criminal liability under Article 20.
Repeated re-promulgation of Ordinances to bypass legislative scrutiny has been judicially disapproved. The Supreme Court, in D.C. Wadhwa v. State of Bihar, held that systematic re-promulgation subverts the constitutional scheme, reinforcing that the Ordinance power is a safety valve, not a substitute for parliamentary deliberation.
All three statements are correct, reflecting the broad but bounded nature of Ordinance-making power. Effective governance demands that this power remain an emergency instrument, exercised with restraint and subject to prompt parliamentary ratification.
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