Which of the following statement(s) regarding promulgation of ordinance is/are correct? 1. President can promulgate ordinances which are of temporary duration 2. An ordinance promulgated by the President has to be ratified by Parliament within six weeks of its re-assembly Select the correct answer using the code given below:

Correct — C, Both 1 and 2. An ordinance under Article 123 is temporary by design. The President may promulgate one only when both Houses of Parliament are not in session and only when he is satisfied that circumstances make immediate action necessary, and it has the same force and effect as an Act of Parliament while it lasts. Its life is short. Under Article 123(2), an ordinance ceases to operate at the expiry of six weeks from the reassembly of Parliament unless it has been approved before then, and it goes earlier still if both Houses pass resolutions disapproving it. So both statements hold. Where the two Houses reassemble on different dates, the six weeks is counted from the later of the two.

• (a)1 only — Accepts the temporary character and rejects the six-week rule, but the six-week rule is the very provision that makes an ordinance temporary. The two statements are two halves of one mechanism.
• (b)2 only — Accepts the six-week limit while denying that ordinances are of temporary duration, which is self-defeating — a measure that lapses six weeks after Parliament meets is by definition temporary.
• (d)Neither 1 nor 2 — Would leave the ordinance power with no limit at all, when Article 123(2) sets one out expressly.

Article 123 gives the Union executive a legislative power to be used between sessions, and Article 213 gives the Governor the same power for a State. The conditions are the same in outline — the legislature must not be in session, the executive must be satisfied that immediate action is needed, and the resulting instrument has the force of law but must be laid before the legislature when it meets. An ordinance may be withdrawn by the President at any time, and it is subject to the same constitutional limits as an Act, so it cannot do what a law could not do.

Repeated re-promulgation is the practice that has generated the case law. In D. C. Wadhwa against the State of Bihar in 1987 the Supreme Court found that Bihar had kept hundreds of ordinances alive for years by re-promulgating them without ever placing them before the legislature, and it called that a fraud on the Constitution. A seven-judge bench returned to the question in Krishna Kumar Singh in 2017 and held that re-promulgation is unconstitutional and that laying an ordinance before the legislature is a mandatory constitutional obligation, not a formality. The Governor's ordinance power under Article 213 carries an extra condition the President's does not — in some cases the Governor needs instructions from the President before promulgating.

• Article 123 empowers the President to promulgate an ordinance when both Houses of Parliament are not in session.
• An ordinance has the same force and effect as an Act of Parliament while it is in operation.
• It ceases to operate six weeks after the reassembly of Parliament unless approved earlier, and sooner if both Houses disapprove it.
• Where the two Houses reassemble on different dates, the six weeks runs from the later date.
• Article 213 gives the Governor a parallel power for a State, and re-promulgation without legislative approval was held unconstitutional in Krishna Kumar Singh in 2017.

• Counting the six weeks from the date of promulgation rather than from the reassembly of Parliament.
• Forgetting that both Houses must be out of session, not just one.
• Assuming an ordinance can do what an Act could not; the same constitutional limits apply.

Ordinance items are almost always about the time limit or about the condition for promulgation, so learn Article 123(2) as a sequence of dates.

• practice — not a real PYQ

  An ordinance promulgated by the President ceases to operate at the expiry of how many weeks from the reassembly of Parliament?

  • (a)Four weeks
  • (b)Six weeks
  • (c)Eight weeks
  • (d)Twelve weeks

  Answer(b) Six weeks — counted from the later date if the two Houses reassemble on different days.

• practice — not a real PYQ

  The power of the Governor of a State to promulgate ordinances is contained in which Article?

  • (a)Article 123
  • (b)Article 200
  • (c)Article 213
  • (d)Article 356

  Answer(c) Article 213 — Article 123 is the President's equivalent power.