Ordinance-Making Power in India: Constitutional Framework, Concerns and Reforms

The Supreme Court (Number of Judges) Amendment Ordinance, 2026 was promulgated to increase the sanctioned strength of the Supreme Court.

• The move has revived debate on the increasing reliance on ordinances and the declining role of Parliament in legislative decision-making.

Best Online Coaching for UPSC 

Constitutional Framework of Ordinances

Article 123: Ordinance-Making Power of the President

• Article 123 empowers the President of India to promulgate an Ordinance when both Houses of Parliament are not in session and circumstances require immediate legislative action.
• An Ordinance has the same force and effect as an Act of Parliament, making it a temporary law enacted by the Executive.
• The Ordinance must be laid before Parliament when it reassembles and must receive Parliamentary approval within six weeks from the date of reassembly.
  • If Parliament does not approve the Ordinance within the prescribed period, it ceases to operate automatically.

Enactment of an Ordinance

• The decision to promulgate an Ordinance is taken by the Union Government, as the President acts on the aid and advice of the Council of Ministers under the parliamentary system.
• Before promulgating an Ordinance, the proposal is submitted to the President based on the recommendation of the Union Cabinet.
• The President may, if deemed appropriate, return the recommendation for reconsideration by the Council of Ministers.
• However, if the Council of Ministers reiterates its advice and resubmits the proposal, the President is constitutionally bound to promulgate the Ordinance, irrespective of whether the advice has been modified or retained.

Withdrawal and Invalidity of an Ordinance

• The President may withdraw an Ordinance at any time before its expiry on the advice of the Council of Ministers.
• An Ordinance may also cease to operate if both Houses of Parliament pass resolutions disapproving it before the expiry of the prescribed six-week period.
• In practice, the rejection of an Ordinance by Parliament may indicate that the government no longer enjoys the confidence of the Legislature, carrying significant political implications.
• Furthermore, an Ordinance is void ab initio if it seeks to legislate on a subject that lies outside the legislative competence of Parliament.
• Like an Act of Parliament, an Ordinance must conform to the Constitution, and any provision violating constitutional limitations may be struck down by the courts through judicial review.

Explore UPSC Foundation Courses

Explore UPSC Foundation Courses

Constituent Assembly’s Intent

• The Constituent Assembly envisaged the Ordinance-making power as an extraordinary legislative mechanism to address situations requiring immediate action when Parliament was not in session.
• It was not intended to bypass Parliamentary debate and scrutiny or serve as a substitute for the normal legislative process.

Judicial Safeguards on Ordinance-Making Power

Concerns Raised by Frequent Use of Ordinances

• Executive Overreach: Excessive use of Ordinances strengthens the Executive’s law-making role at the expense of the Legislature.
  • It disturbs the constitutional balance between the Executive and Parliament.
  • Ordinance-making may be perceived as a means of avoiding legislative resistance or political scrutiny.
• Weakening of Parliamentary Supremacy in Law-Making: Parliament risks becoming a body that merely approves decisions already taken by the Executive.
  • The legislative branch’s role in policy formulation and law-making is consequently diminished.
  • Such practices weaken the spirit of responsible government envisaged under the Constitution.
• Reduced Public Accountability and Transparency: Parliamentary debates allow citizens to assess the merits and implications of proposed laws.
  • Ordinances bypass this public process, limiting opportunities for transparency, public scrutiny, and democratic accountability.
  • Citizens are deprived of observing how different viewpoints are debated and reconciled.
• Precedent for Governance by Executive Decree: Frequent promulgation of Ordinances risks normalizing executive law-making.
  • Exceptional constitutional powers may gradually become routine instruments of governance.
  • This trend can weaken democratic institutions and erode constitutional conventions.
• Bypassing Legislative Deliberation: Frequent reliance on Ordinances circumvents the normal process of Parliamentary debate, discussion, and scrutiny.
  • Significant policy decisions may be implemented without adequate examination by elected representatives.
  • This undermines the principle of deliberative democracy, which lies at the heart of parliamentary governance.

UPSC Online Coaching

Declining Role of Parliament: Emerging Trends

• Centralisation of Decision-Making: Major policy decisions increasingly originate within the Cabinet, party leadership, and the Prime Minister’s Office (PMO), with Parliament often involved only at the final stage of approval.
  • As a result, Parliament’s influence over policy formulation and decision-making is reduced, contributing to the growing concentration of power in the Executive.
• Decline in Committee Scrutiny: An increasing number of Bills are being enacted without being referred to Department-Related Standing Committees, reducing opportunities for detailed legislative examination.
  • Limited committee scrutiny restricts expert consultation, stakeholder participation, and evidence-based policy assessment, which are essential for informed law-making.
  • Consequently, the quality of legislation, parliamentary oversight, and accountability mechanisms may be adversely affected.
• Compressed Legislative Debates: Several Bills have been passed with limited discussion and shortened debate durations, reducing the scope for meaningful parliamentary deliberation.
  • As a result, Members of Parliament receive fewer opportunities to scrutinize legislative provisions, propose amendments, and raise concerns regarding implementation and potential consequences.
  • This trend weakens the deliberative and consultative character of Parliament, which is fundamental to democratic law-making.
• Disruptions and Political Polarisation: Frequent disruptions reduce the effective working time of Parliament.
  • Legislative proceedings increasingly reflect partisan confrontation rather than constructive deliberation.
  • Such disruptions hinder Parliament’s ability to perform its legislative and oversight functions effectively.
• Erosion of Question Hour: Question Hour, a key instrument of executive accountability, has witnessed reduced effectiveness in certain periods.
  • Limited opportunities for questioning ministers weaken Parliamentary oversight of government actions.
  • This diminishes transparency and accountability in governance.
• Growing Use of Non-Legislative Routes: Increasing reliance on Ordinances, delegated legislation, executive orders, and regulatory notifications reduces Parliament’s direct involvement in governance.
  • Important policy measures may be implemented without comprehensive legislative examination.
  • This contributes to the gradual expansion of executive discretion.
• Declining Quality of Deliberation
  • Reduced debate time and heightened political polarization can affect the quality of parliamentary discussions.
  • Complex issues often receive insufficient examination despite their long-term implications.
  • As a result, Parliament’s role as the nation’s foremost deliberative institution may be weakened.

Arguments Supporting the Ordinance Route

• Need for Immediate Action: Certain circumstances may require urgent legislative intervention when Parliament is not in session and waiting for the next session could adversely affect public interest.
  • The Ordinance-making power enables the government to respond swiftly to unforeseen situations requiring immediate legal action.
• Administrative Efficiency and Continuity of Governance: Ordinances ensure the continuity of governance by allowing the Executive to address pressing issues without legislative delay.
  • They provide a mechanism for maintaining administrative efficiency, particularly during emergencies or exceptional situations.
• Addressing Time-Sensitive Challenges: The Ordinance route facilitates a rapid response to judicial directives, economic developments, public health emergencies, national security concerns, and other time-sensitive issues.
  • It enables the government to implement necessary legal measures when delay could have significant consequences.
• Constitutionally Sanctioned Legislative Mechanism: Article 123 of the Constitution expressly authorizes the President to promulgate Ordinances under specified circumstances.
  • Therefore, Ordinance-making is a legitimate constitutional instrument when exercised in accordance with constitutional principles and genuine necessity.
• Safeguard Against Legislative Vacuum: Ordinances prevent a legislative vacuum during periods when Parliament is not in session and immediate law-making is required.
  • They ensure that governance and public administration are not hindered by procedural constraints in exceptional situations.
• Subject to Parliamentary Approval: Ordinances are temporary measures and must be placed before Parliament for approval within the prescribed constitutional timeframe.
  • This requirement preserves Parliamentary supremacy while allowing urgent action when circumstances demand it.

Explore Degree Courses

Explore Degree Courses

Significance of Parliament in Democracy

• Institution of Deliberative Democracy: Parliament serves as the primary forum for debate, discussion, negotiation, and consensus-building in a democratic polity.
  • It transforms public preferences and competing interests into legitimate laws and public policies through collective deliberation and reasoned decision-making.
  • Parliamentary deliberations ensure that legislation reflects informed judgment rather than unilateral executive action.
• Mechanism of Executive Accountability: Parliament acts as the principal institution for ensuring executive accountability and maintaining checks and balances within the constitutional framework.
  • It scrutinizes government actions through:
    • Question Hour
    • Zero Hour
    • Parliamentary Committees
    • Adjournment Motions
    • No-Confidence Motions
    • Parliamentary Debates and Discussions
• Representative Character of Democracy: Parliament provides a platform for the expression of diverse social, regional, linguistic, cultural, and political interests.
  • It ensures the participation of representatives from different sections of society, thereby strengthening inclusive governance.
  • Parliamentary functioning accommodates both majority rule and minority rights, which are essential features of a constitutional democracy.
• Source of Legitimacy in Law-Making: The legitimacy of laws arises not merely from numerical majority voting, but from the process of public reasoning, debate, scrutiny, and consultation.
  • Parliamentary examination enhances the quality, transparency, and acceptability of legislation.
  • Laws enacted through a robust parliamentary process command greater democratic legitimacy and public trust.
• Guardian of Constitutional Democracy: Parliament serves as a vital institution for protecting constitutional values, democratic norms, and the rule of law.
  • Effective parliamentary functioning prevents the concentration of power in the Executive and preserves the spirit of responsible government envisaged by the Constitution.
• Forum for National Consensus and Conflict Resolution: Parliament provides a constitutional platform for resolving political disagreements and social conflicts through dialogue rather than confrontation.
  • It facilitates consensus-building on issues of national importance, thereby strengthening democratic stability and national integration.
  • Parliamentary debates help reconcile competing interests within a diverse society.
• Financial Oversight and Control over Public Expenditure: Parliament exercises control over the public purse, a core principle of parliamentary democracy.
  • No tax can be imposed and no expenditure can be incurred without Parliamentary approval.
  • Through the Budget, Demand for Grants, Public Accounts Committee (PAC), and other financial committees, Parliament ensures transparency, accountability, and fiscal discipline in government spending.
• Link Between Citizens and the State: Parliament acts as the institutional bridge between citizens and the government.
  • Members of Parliament articulate the aspirations, grievances, and concerns of their constituents at the national level.
  • This representative function strengthens participatory democracy and ensures that governance remains responsive to public needs.

Way Forward

• Strengthen Parliamentary Committee System: Committee scrutiny should be made mandatory for significant and complex Bills to ensure thorough legislative examination.
  • Greater emphasis should be placed on bipartisan participation, expert consultation, and stakeholder engagement to improve the quality of legislation.
  • A robust committee system can enhance transparency, accountability, and evidence-based policy-making.
• Regulate the Use of Ordinances: Clearer constitutional conventions and institutional safeguards should be developed to prevent the routine use of Ordinances.
  • The Executive should be required to provide a detailed justification demonstrating the urgency and necessity of invoking Article 123.
  • This would help preserve the exceptional character of the Ordinance-making power.
• Enhance Deliberative Legislative Processes: Major legislation should be accompanied by minimum guaranteed debate periods to facilitate meaningful parliamentary discussion.
  • Adequate opportunities must be provided for opposition parties and smaller political groups to participate in legislative deliberations.
  • This would reinforce Parliament’s role as the principal institution of deliberative democracy.
• Revitalise Question Hour: Question Hour, a vital instrument of executive accountability, should be protected from frequent suspension or dilution.
  • Strengthening Question Hour would improve government transparency, ministerial accountability, and parliamentary oversight.
  • It would also reinforce Parliament’s role in scrutinizing executive action.
• Improve Legislative Research Support: Professional research and analytical support services for Members of Parliament should be expanded and strengthened.
  • Access to high-quality research would enable MPs to engage more effectively in legislative scrutiny and policy evaluation.
  • This would promote evidence-based law-making and informed parliamentary debates.
• Review Anti-Defection Provisions: Reforms to the Anti-Defection Law may be considered to provide legislators with greater freedom to participate in policy discussions and legislative deliberations.
  • Such reforms should balance independent legislative judgment with the need to maintain political stability and party discipline.
• Promote Parliamentary Ethics and Civility: Efforts should be made to encourage constructive debate, mutual respect, and responsible parliamentary conduct.
  • Reducing disruptions and fostering a culture of informed discussion can improve the effectiveness of Parliament.
  • Strong parliamentary ethics are essential for restoring public confidence in democratic institutions.
• Increase Public Participation in Law-Making: Pre-legislative consultation mechanisms should be institutionalised to enable broader public engagement in the legislative process.
  • Stakeholders, civil society organizations, experts, and citizens should be given opportunities to provide feedback on proposed laws.
  • Greater public participation would enhance the legitimacy, inclusiveness, and responsiveness of legislation.

Click to Explore UPSC Offline Coaching

Conclusion

• The debate surrounding the Supreme Court Judges Ordinance, 2026 extends beyond judicial appointments and raises fundamental questions about the health of Indian parliamentary democracy.
• While ordinances remain a necessary constitutional tool for exceptional circumstances, their routine use risks weakening Parliament’s role as the central institution of democratic deliberation.
• Strengthening Parliament through institutional reforms, robust committee scrutiny, and enhanced accountability mechanisms is essential to preserve the spirit of the Constitution and ensure that governance remains rooted in discussion, persuasion, and democratic legitimacy rather than executive fiat.

Check Out UPSC CSE Books

Visit PW Store

DOWNLOAD PDF