Political Philosophy
From the Reassembly: The Clock an Ordinance Runs On, and the Authority That Decides When It Starts
2 November 2026 · 21 min read
A constitution that permits the executive to make law has to explain itself twice over. First on the occasion: why a body that was not elected to legislate may do so at all. Then on the duration: for how long what it has made will stand, and who ends it.
The first question has a straightforward answer, and it is much the same wherever the power is granted. Legislatures sit in sessions and are not sitting most of the time, events do not wait for a session, and the executive is the only organ permanently in existence. So the power is granted, and it is granted on a condition of necessity.
The second question is the one that does the work. A law made by the executive in a gap between sessions is defensible for the length of the gap. Once the legislature is back, the justification has lapsed, and what the executive made ought to stand or fall by what the legislature now does about it. The constitutional case for an executive law rests on its being temporary, which makes the provision fixing its duration something other than an administrative detail of the power. It is the power's licence.
The Constitution of India answers both questions three times — in Article 123 for the President, in Article 213 for a Governor, and in Article 239B for the administrator of a Union territory having a Legislature. The three answers are not identical, and the differences between them are more instructive than what the three have in common.
What the articles provide
Article 123(1) grants the power and states its condition:
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.
Two subjective tests sit in that sentence, and they are separate. The first is whether immediate action is necessary, which is a question about the occasion. The second is what the Ordinance should contain, and the clause settles it with the words "as the circumstances appear to him to require" — a question about content, answered by the same person, on the same standard, in the same breath.
Clause (2) supplies the force and the limit together:
An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance— (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President.
An Explanation adds that where the Houses are summoned to reassemble on different dates, the six weeks are reckoned from the later of those dates. Clause (3) provides that so far as an Ordinance makes any provision which Parliament would not be competent to enact, it shall be void.
Article 213 does the same for a State, with three additions. Its clause (1) carries a proviso requiring the Governor to obtain instructions from the President before promulgating in three defined classes of case. Its clause (2) equates the Ordinance not with an Act of the State Legislature but with "an Act of the Legislature of the State assented to by the Governor". And its clause (3) carries a proviso deeming an Ordinance promulgated in pursuance of the President's instructions to be an Act reserved for the President's consideration and assented to by him, for the purposes of the provisions on repugnancy to a law of Parliament.
Article 239B grants the power to the administrator of the Union territory of Puducherry, in the same opening words, and then departs from both of the others in ways set out below.
An Ordinance is not the only executive instrument the Constitution invests with the force of an Act. Article 240 permits the President to make regulations for certain Union territories, and clause (2) provides that such a regulation may repeal or amend an Act of Parliament applicable to the territory and "shall have the same force and effect as an Act of Parliament which applies to that territory". But that power is not conditioned on necessity, is not limited in time, and is not laid before anybody. It is a different arrangement for territories that have no legislature of their own, and the question of duration does not arise in it. The ordinance power is the one the Constitution grants on the footing that a legislature exists and is temporarily unavailable.
The clock does not start when the Ordinance does
The operative words in all three articles are the same: the Ordinance "shall cease to operate at the expiration of six weeks from the reassembly" of the legislature.
Six weeks is a short period, and read by itself it looks like a strict limit. It is not a limit on the life of the Ordinance. It is a limit on how long the Ordinance may survive after the legislature has come back. The period before the legislature comes back is not counted at all.
The length of an Ordinance's operation is therefore fixed by two dates: the date of promulgation and the date appointed for the legislature's next sitting. The first is chosen by the promulgating authority. So is the second. Article 85(1) provides that "The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session." Article 174(1) says the same for a State and a Governor.
That is the only constraint on the second date. Within it, an Ordinance promulgated in the days after the Houses have risen may remain in operation until six weeks after a first sitting that need not be appointed for nearly six months. On the text the outer life of an executive law approaches seven and a half months, and every date that determines it is set by the executive.
This is not an oversight in the drafting, and there is a reason for the words. A limit measured from promulgation would expire while the House was still prorogued, which would defeat the object — the Ordinance would lapse at a moment when nothing could be put in its place and the legislature could not be asked. Measuring from reassembly guarantees the legislature a window in which to act on it. The six weeks exist for the benefit of the House rather than as a restraint on the executive.
The consequence follows anyway. The provision that supplies the constitutional justification for the power — that what the executive makes is temporary — measures the temporariness from an event the executive appoints. The Constitution could have fixed an outer limit running from promulgation, and did not. It could have required the House to be summoned within a stated period of a promulgation, and did not. The Ordinance's duration is governed by the summoning power, and the summoning power is in the same hands as the power to promulgate.
Who must be in session, and who must disapprove
Article 123(1) withholds the power only "when both Houses of Parliament are in session". One House sitting is not enough. If the Council of States is in session and the House of the People stands prorogued, the condition in clause (1) is satisfied and an Ordinance may be promulgated.
Clause (2)(a) then provides for the Ordinance to end early if "resolutions disapproving it are passed by both Houses". One House is not enough there either.
The two requirements point the same way. Agreement between the Houses is needed to prevent an Ordinance from being made, and agreement between the Houses is needed to unmake it before its six weeks have run. Wherever the chambers differ, the difference operates in favour of the Ordinance.
In a State with a Legislative Council the same structure produces a sharper result. Article 213(1) withholds the power only when both Houses are in session. Article 213(2)(a) provides for early cessation if "a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any". The Council's agreement is required, and nothing in the article permits the Assembly to dispense with it.
That is worth pausing on, because the Council has no comparable position in relation to a Bill. Article 197 allows a Legislative Council to reject a Bill other than a Money Bill, or to sit on it for three months; the Assembly may then pass it a second time, and if the Council rejects it again or lets a month pass, the Bill "shall be deemed to have been passed by the Houses of the Legislature of the State" in the Assembly's form. There is no joint sitting in a State and no need for one. The Council cannot stop a law from being made.
It can decline to join in disapproving an Ordinance. If the Assembly resolves that an Ordinance should cease to operate and the Council does not agree, the resolution does not take effect, and the Ordinance runs its six weeks. What the Council preserves by refusing is small — the Ordinance was going to lapse in any event, and all that is held is the unexpired part of a six-week period. But the asymmetry is real: on a Bill the Assembly legislates over the Council's objection, and on the unmaking of an Ordinance it cannot.
Both articles are also silent where silence matters most. Nothing in Article 123 or Article 213 withholds the power while the popular chamber stands dissolved. A dissolved House of the People is not in session, and the condition in clause (1) is satisfied. On the words of the article, the power to make law without the legislature is at its widest in the weeks when there is no legislature to displace.
The grading runs the other way
Article 239B is the third grant, and it is the strictest of the three.
The administrator of Puducherry may not promulgate any Ordinance "except after obtaining instructions from the President in that behalf". Not in three classes of case, as with a Governor; in every case. He may not withdraw one except after obtaining instructions either, where Articles 123(2)(b) and 213(2)(b) permit the President and the Governor to withdraw "at any time". And a second proviso closes the power altogether in defined circumstances:
Provided further that whenever the said Legislature is dissolved, or its functioning remains suspended on account of any action taken under any such law as is referred to in clause (1) of article 239A, the administrator shall not promulgate any Ordinance during the period of such dissolution or suspension.
The deeming clause is conditional in the same way. Article 213(2) gives every Ordinance the force of an assented Act. Article 239B(2) confines that force to an Ordinance "promulgated under this article in pursuance of instructions from the President", which alone "shall be deemed to be an Act of the Legislature of the Union territory which has been duly enacted". Without instructions there is nothing with any force at all.
So the three powers are graded, and the gradation is plain. The President needs nobody's permission. A Governor needs the President's instructions in three defined cases. An administrator needs them always, needs them again to withdraw, and loses the power entirely while his Legislature is dissolved or its functioning suspended.
The gradation tracks the standing of the office, which is unsurprising, since the Union's supervisory relationship with a Union territory administration is closer than its relationship with a State. What is harder to account for is that it runs in the opposite direction from the strength of the legislature being displaced. The most constrained ordinance power displaces the smallest legislature; the least constrained displaces Parliament. And the one safeguard that addresses the case where there is no functioning legislature at all — the bar on promulgating during a dissolution or suspension — appears only in the article governing a Union territory. Where the chamber is weakest, the Constitution has provided that the executive may not legislate in its absence. Where it is strongest, the article does not say so.
What instructions do that assent would have done
The proviso to Article 213(1) requires the Governor to obtain the President's instructions in three cases: where "a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature"; where "he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President"; and where "an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President".
The three are not arbitrary. They are the points at which the Constitution already requires the Union to be involved in State legislation. The proviso to Article 304(b) provides that "no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President". The first proviso to Article 31A(1) withholds that article's protection from a State law unless the law, "having been reserved for the consideration of the President, has received his assent". Article 254(2) makes a repugnant State law on a Concurrent List subject prevail in that State if it was reserved for the President's consideration and received his assent.
An Ordinance would bypass all of this, because Article 213(2) equates it with an Act already assented to. The proviso restores the Union's involvement by moving it forward in time: what an Act obtains after passage, an Ordinance must obtain before promulgation.
The substitution is not exact, and the inexactness is in the word. An Act is reserved for the President's "consideration" and receives his "assent", and Article 201 requires him to declare either that he assents or that he withholds assent. An Ordinance requires "instructions", for which the Constitution prescribes no form and no declaration, and which it does not require to be published or recorded. The proviso to Article 213(3) then treats an Ordinance promulgated in pursuance of instructions as though it were an Act reserved and assented to, so an instrument whose Union approval is unstated acquires, for repugnancy purposes, the overriding force that Article 254(2) gives only to a law whose assent is a matter of record.
"Cease to operate" is not "void"
The Constitution uses a careful vocabulary about laws that fail, and the ordinance articles use two of its terms in a single provision.
Clause (2)(a) says an Ordinance "shall cease to operate". Clause (3) says that an Ordinance beyond competence "shall be void". The drafting keeps apart the Ordinance that has run out of time and the Ordinance that should never have been made.
What follows from the first of those terms occupied the Supreme Court for decades, because a good deal can happen in six weeks and in the months preceding them. Appointments are made; money is paid; a repeal takes effect; an office is created or abolished. If an Ordinance has the force of an Act, do things done under it survive its cessation in the way things done under a temporary Act survive its expiry?
A Bench of seven Judges answered in Krishna Kumar Singh v. State of Bihar, decided on 2 January 2017. The judgment of Chandrachud, J., signed by five of the seven, summarised its conclusions at length. On the vocabulary, it held that the two expressions are distinct and were meant to be: "The framers having used the expressions 'cease to operate' and 'void' separately in the same provision, they cannot convey the same meaning." Cessation does not make an Ordinance void from the beginning.
But the Court rejected the proposition that rights acquired under an Ordinance endure in the manner of rights acquired under a temporary Act. It held that "There is a basic difference between an ordinance and a temporary enactment", that the earlier decisions accepting enduring rights "do not lay down the correct position", and that whether rights and liabilities survive is "essentially one of construction", on which "The appropriate test to be applied is the test of public interest and constitutional necessity", including whether what has been done under the Ordinance has "assumed an irreversible character". On that question the Chief Justice and Lokur, J. agreed, so it carried the whole Bench.
The laying requirement divided the Bench, and the division is worth recording, because the text is genuinely incomplete there. Article 123(2)(a) and Article 213(2)(a) direct that an Ordinance "shall be laid" before the House, and neither attaches any consequence to a failure to do so. The judgment of Chandrachud, J. held the obligation to lay "is a mandatory constitutional obligation cast upon the government", on the ground that the legislature has to determine the need for and validity of the Ordinance, whether it should be approved or disapproved, and whether an Act containing its provisions should be enacted; and that a failure to lay is "a serious constitutional infraction and abuse of the constitutional process". Lokur, J. took the obligation to be directory. Thakur, C.J. declined to decide between them, holding that the appeal could be disposed of without the question, and left "the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature" open.
So the point stands on the view of five Judges rather than on an undivided holding, and the reason the question had to be reached at all is that the articles create a duty and attach nothing to its breach. On the text alone, an Ordinance that is never laid ceases to operate on exactly the same day as one that is.
The clause that was inserted and withdrawn
There is one place where the Constitution tried to answer the question of who reviews the satisfaction, and the answer it gave was nobody.
The Constitution (Thirty-eighth Amendment) Act, 1975 inserted a clause (4) into all three articles — by section 2 into Article 123, by section 3 into Article 213, and by section 4 into Article 239B — in each case with retrospective effect. The clause inserted into Article 123 read:
Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground.
The Constitution (Forty-fourth Amendment) Act, 1978 omitted all three, by sections 16, 27 and 32 respectively, with effect from 20 June 1979. The consolidated text prints clause (4) of each article as a row of asterisks.
The omission did more than restore the earlier position. An ouster clause that is enacted and then repealed is not in the same position as one that was never enacted, because the repeal is itself a statement about the provision. A Constitution Bench said as much in A.K. Roy v. Union of India, (1982) 1 SCC 271, decided on 28 December 1981, while considering the ordinance power. Chandrachud, C.J. observed that the leading authority on the political-question doctrine had been decided when Article 356 carried a parallel clause inserted by the same amendment, that observations resting on that clause "cannot any longer hold good", and that "It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction." On the political-question argument the Court said: "We see the force of the contention that the question whether the pre-conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question."
The Court did not decide the point, because the Ordinance before it had been replaced by an Act. The 2017 judgment did, holding that the satisfaction "is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles", and stating the test as whether the satisfaction rests on some relevant material, whether it constitutes a fraud on power or was actuated by an oblique motive — "Judicial review in other words would enquire into whether there was no satisfaction at all."
The limit the text does not contain
The restraint on the ordinance power that matters most in practice is not in the text of any of the three articles.
Nothing in Article 123 or Article 213 says that an Ordinance which has ceased to operate may not be promulgated again. On the words, a government whose Ordinance is about to lapse may let it lapse, have the House prorogued, and promulgate the same provisions afresh; and the cycle may be repeated. If that were permissible the six weeks would be no limit at all, and the executive would hold a standing power to legislate indefinitely without ever asking the legislature for anything.
A Bench of five Judges held it impermissible in Dr. D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, decided on 20 December 1986, on facts in which successive Ordinances had been re-promulgated over a period of years. The Court reasoned from the structure rather than from any express prohibition. "The primary law making authority under the Constitution is the Legislature and not the Executive"; a government that re-promulgates rather than enacts is "clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive"; and "A constitutional authority cannot do indirectly what it is not permitted to do directly", so that a provision inhibiting it "cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision."
The Bench of 2017 restated that holding and applied it, concluding that re-promulgation "is a fraud on the Constitution" and a subversion of democratic legislative processes. On this the Court was not divided: the Chief Justice took the repeated re-promulgations to be "constitutionally impermissible and a fraud on the powers vested in the executive" independently of the question he left open.
That is the decisive limit on the power, and it is a construction of a scheme which does not state it. The Constitution fixed a period and said nothing about repetition. Had the question been answered the other way, the period would have meant very little.
What the arrangement assumes
Read together, the three articles rest on an assumption that is nowhere written down: that the authority which promulgates an Ordinance wants the legislature to sit.
Every date in the scheme belongs to the executive. It decides when to promulgate. It appoints the date of reassembly, from which the only stated period runs. Where the two Houses reassemble separately the later date governs, and it appoints both. It may withdraw the Ordinance at any time, and so may dispose of one that is about to be disapproved. What it cannot do is extend the Ordinance beyond the six weeks, or promulgate it again — and the second of those was supplied by the Supreme Court rather than by the text.
What the legislature holds is thinner. It has an entitlement to be told, which the articles direct and to which they attach no consequence, and on whose character the Court has divided. It has a power to disapprove, which requires both chambers to agree and which, exercised on the last available day, advances the lapse by nothing. And it has the ordinary power to legislate, which is the only one of the three that settles anything, and which it can exercise only once it has been summoned.
None of this makes the power indefensible. The occasion for it is real; a State whose executive could do nothing between sessions would be worse governed, not better. The structure assumes that the interval between sessions is an interval and not a destination, and for most of the time the assumption holds.
The observation is narrower than a criticism. It is that the safeguard the Constitution wrote into these articles — a fixed period, stated in weeks, after which an executive law expires by its own terms — operates only once a condition has been satisfied by the executive itself. The period is stated in weeks and measured from a date that may be months away, and the two things that keep it from being indefinite are a rule about summoning in Articles 85 and 174 and a rule against re-promulgation that is not in the Constitution at all.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.