Ordinances Explained: How India Makes Law Without Parliament

When the government wants a law in a hurry and Parliament isn't sitting, it has a powerful shortcut: the ordinance. It is one of the least understood tools in Indian governance, yet it has been used to push through everything from land acquisition rules to triple talaq. Understanding the ordinance route under Article 123 tells you a lot about where executive power ends and legislative accountability begins — and why courts keep stepping in to draw the line.

What an ordinance actually is

An ordinance is a temporary law made by the executive instead of the legislature. At the Union level, the President promulgates it under Article 123; in the states, the Governor does so under Article 213. Crucially, an ordinance has exactly the same force and effect as an Act of Parliament or a state legislature — while it is in force, it can create offences, levy obligations and change existing law.

The trigger condition is simple: the relevant House (or both Houses) must not be in session. The Constitution assumes that lawmaking is the job of the legislature, and the ordinance is meant only for situations that genuinely cannot wait until the next session. That "cannot wait" requirement is the part most often stretched in practice.

One common myth is that the President personally decides to issue an ordinance. In reality, the President acts on the advice of the Council of Ministers — meaning the Union Cabinet decides, and the President signs. So an ordinance is, for all practical purposes, the elected government legislating directly, with Parliament temporarily out of the room.

The clock: how long an ordinance survives

An ordinance is deliberately short-lived. The Constitution forces it back in front of the legislature quickly so that elected representatives get the final say.

• It must be laid before both Houses of Parliament when they reassemble.
• It ceases to operate at the expiry of six weeks from the date Parliament reassembles, unless both Houses pass a resolution approving it (or convert it into a full Act) before then.
• If both Houses sit on different dates, the six-week clock starts from the later date.
• It can also be withdrawn at any time by the President.

String these rules together and you get the outer limit: since Parliament cannot stay prorogued for more than six months between sessions, an ordinance can survive for a maximum of roughly six months and six weeks. After that, it must either become a proper law passed by the legislature, or it lapses.

When an ordinance lapses, things get tricky. Actions already completed under it don't automatically unravel, but the legal position of half-finished matters becomes a genuine grey area — one reason courts treat ordinances with suspicion.

What an ordinance cannot do

The power is wide but not unlimited. Several guardrails apply.

First, an ordinance cannot amend the Constitution. Constitutional amendments require a special majority in Parliament and, for some provisions, ratification by states — a process that simply cannot be replicated by executive signature.

Second, an ordinance can only cover subjects on which the relevant legislature is itself competent to legislate. The President's ordinance is tied to Parliament's subject list; a Governor's ordinance is tied to the state's. A Governor also needs the President's prior instruction in certain sensitive cases, such as where a corresponding Bill would have needed central assent.

Third, ordinances are subject to judicial review. For a long time the assumption was that the executive's "satisfaction" that circumstances required immediate action was beyond challenge. The Supreme Court has since made clear that this satisfaction is not immune — if an ordinance is issued in bad faith or to defeat the legislature, courts can strike it down.

The re-promulgation trap

The single biggest abuse of the ordinance power is re-promulgation — issuing a fresh ordinance with the same content the moment the old one is about to lapse, so the law stays alive for years without ever facing a proper vote.

The classic example came from Bihar, where over a roughly 14-year stretch the state government promulgated more than 250 ordinances and kept many alive simply by re-issuing them, some for over a decade. This was exposed in the well-known DC Wadhwa case (1987), in which the Supreme Court warned that turning a temporary emergency power into a parallel, permanent way of making law was a constitutional distortion.

The court returned to the issue with full force in Krishna Kumar Singh v State of Bihar (2017), decided by a seven-judge bench. It held that re-promulgating ordinances to bypass the legislature is unconstitutional and amounts to a "fraud on the Constitution." The bench also clarified that the duty to lay an ordinance before the legislature is mandatory, not optional — the executive cannot simply let ordinances live and die without legislative scrutiny.

Why governments love it — and why critics worry

From a government's point of view, the appeal is obvious. An ordinance lets it act fast on a market-sensitive change, a court ruling that needs an urgent legislative response, or a policy it wants in place before the next session. When a government lacks the numbers in the Rajya Sabha, the ordinance route can also be a way to implement a policy first and fight the parliamentary battle later.

That is precisely what worries critics. Lawmaking is supposed to involve debate, committee scrutiny, opposition amendments and a recorded vote. An ordinance skips all of that. Used sparingly for genuine emergencies, it is a sensible safety valve; used routinely, it hollows out Parliament's core function.

High-profile recent uses show both sides. The Union government re-issued a land acquisition ordinance multiple times in 2014–15 before eventually letting it lapse amid stiff opposition — a reminder that the ordinance route does not guarantee a law will stick. Other significant measures, including the criminalisation of instant triple talaq, first arrived as ordinances before being passed as full statutes once the numbers lined up.

What to watch for as a reader

When you see a new law arrive as an ordinance, a few questions cut through the noise:

1. Why now? Is there a real reason it could not wait for the next session, or is it a way to avoid debate?
2. Will it be passed? An ordinance is only as durable as the government's ability to convert it into an Act within the six-week window.
3. Is it being re-issued? Repeated re-promulgation is a red flag the Supreme Court has explicitly condemned.
4. Is it being challenged? Ordinances on contested subjects increasingly end up in court, where their underlying "urgency" can be tested.

The ordinance is, at heart, a measure of trust. The Constitution hands the executive an extraordinary power on the understanding that it will be used rarely and returned to the legislature quickly. Each time it is stretched, the courts and the public are right to ask whether a genuine emergency was at work — or whether Parliament was simply being told to wait outside while the law was written without it.