Context: Recently, the central government promulgated an Ordinance that undid the unanimous verdict of a five-judge Constitution Bench of the Supreme Court.

What are the constitutional provisions related to Ordinance?

• Article 123: “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.”

• Ordinance shall have the same force and effect as an Act of Parliament.

• Article 213: It deals with the broadly analogous powers of the Governor to promulgate/ withdraw an Ordinance when the state legislature is not in session.

When does an ordinance lapse?

• Ordinance is required to bring before Parliament for ratification and its failure of ratification will lead to lapse.

• Ordinance may lapse earlier if the President withdraws it.

• Ordinance also lapses if both Houses pass resolutions disapproving it.

• Rejection of an Ordinance would, however, imply the government has lost the majority.

• If an Ordinance lapses the only option for the government is to reissue or repromulgate it.

What is the validity of the Ordinance?

• Ordinance can last a maximum of 6 months and 6 weeks without ratification.

• It is valid for six weeks, or 42 days from the date on which the next session starts.

• Note: If the two Houses start their sessions on different dates, the later date will be considered.

Who decides to bring Ordinance?

• Ordinances in India can be issued by the President.

• But the President acts on the advice of the Council of Ministers, it is in effect the government that decides to bring the Ordinance.

Can the President reject the ordinance sent by the government?

• No, but the President may return the recommendation of the Cabinet once if she feels it warrants reconsideration.

• However, if it is sent back again (with or without reconsideration), the president has to promulgate it.

What are the cases related to the Ordinance?

Krishna Kumar Singh and Another v. State of Bihar

• SC said legislation should normally be done by the legislature, and the Governor’s power to issue an Ordinance is like emergency power.

Dr D C Wadhwa v. State of Bihar (1986)

• A challenge was mounted against the power of the Governor to repromulgate various Ordinances in Bihar after 256 Ordinances were promulgated between 1967 and 1981.

• Out of which 69 were repromulgated several times and kept alive with the permission of the President.

• Court said there might be circumstances permitting the re-promulgation of an Ordinance, but repeated re-promulgations without bringing the Ordinance to the legislature would usurp the legislature’s function, and will be unconstitutional.