The apparent meaning of the word ordinance is “an order or a rule made by a government or somebody in a position of authority”, as given in the Oxford dictionary. An ordinance is a special order passed by the President of India. The President can pass these orders on the recommendation of the Union Cabinet. An ordinance includes such orders as new taxes constituted to introduce new sources of income or the allocation and use of resources during situations like war.

Ordinance: A History

Government of India Act, 1935 empowered the Governor-General to pass ordinances. This power of the Governor-General was stated in the 42nd and 43rd sections of the act and said that ‘If circumstances exist which render it necessary for him to take immediate action’. The Constitution of India took the idea from the Government of India Act and incorporated the constitutional ordinance.

Ordinance-Making Power of the President

The President of India has certain law-making powers, as stated in article 123 of the Constitution of India. These powers are the promulgation of ordinances when one or both the houses of the Parliament are not in session. An ordinance can be promulgated on any subject that comes under the purview of the law. The following conditions regulate the promulgation of an ordinance:

• A need for expedited action: The President needs to make sure that the situation at hand is solved as soon as possible. Only circumstances that require immediate solutions can qualify for an ordinance.
• Approval of Parliament: After an ordinance is passed, it needs to be passed in the next session of the Parliament. If the Parliament does not pass it, the ordinance will lapse after six weeks.
• The houses of the Parliament should not be in session: The idea underlying this power of the President is that it needs to be exercised when the legislature is unable to pass the required legislation. So the President can pass an ordinance only when one or both the houses of the Parliament are not in session.

The President can withdraw an ordinance at the suggestion of the council of ministers.

Ordinance, Bill, Act, and the Law

Bill

A bill can be considered a precursor to an act of the constitution. It is usually a summary of the proposed law and can be introduced by the government or an individual member of the Parliament. The bill must be passed by both houses of Parliament and sent to the President for their assent. After this, the bill becomes an act of the constitution.

Act

An act is a part of the constitution enforceable by law. So essentially, it is a building block of the law. When the Parliament passes a bill, it goes to the President. When the President has given their assent, the bill becomes an act.

Ordinance

An ordinance is not an act of the constitution but it has the powers of an act of the constitution till it is in effect. The President passes it, and it can be turned into an act of the constitution when passed by both Parliament houses. But if an ordinance does not receive the legislature’s assent, then it ceases to be effective as a law.

Law

This is a general term used to refer to the rules and regulations that the country’s citizens need to abide by or be charged according to their offences. It can refer to ordinances, acts, or any other body of rules and regulations enforceable by the constitution.

Important Cases Involving an Ordinance

• R.C. Cooper v. Union of India: The Supreme Court of India analysed the Banking Companies Ordinance, 1969, which nationalised 14 commercial banks.
• A.K. Roy v. Union of India: The Supreme Court looked into the National Security Ordinance, 1980 and declared that the President could not have an ordinance beyond the Judicial review of the Supreme Court.
• S.K.G.Sugar Ltd v. the State of Bihar: In this case, the court held that the satisfaction of the Governor was a subjective and not justiciable matter. In other words, the satisfaction of the Governor could be judged only by themself.

Conclusion

An ordinance is an order reserved for special circumstances. Its use has always been a matter of discussion and needs to be reviewed carefully. It indeed provides a practical and necessary solution for situations that are too imperative for the country to wait for a formal session of the Parliament. This provision also carries a considerable amount of arbitrariness. Therefore it needs to be exercised with care and caution.