Prelims Workshop: Polity

Batch 5 | Topics 72–75 | Ordinances

Ordinances

4 Topics
Quick Navigation Index
72 Jammu and Kashmir Reorganisation (Amendment) Ordinance, 2023 73 Salaries and Allowances of Officers of Parliament Ordinance 74 State Ordinances — Maharashtra, Rajasthan, UP (2023–25) 75 Ordinance-Making Power — Articles 123 and 213
TOPIC 72

Jammu and Kashmir Reorganisation (Amendment) Ordinance, 2023

Ordinances
Why in News
  • The J&K Reorganisation (Amendment) Ordinance, 2023 increased J&K's Legislative Assembly seats from 83 to 90 to accommodate displaced Kashmiri Pandits and migrants.
  • Promulgated just before the J&K Assembly elections (September–October 2024), it was subsequently replaced by a legislative Act — a standard constitutional sequence under Article 123.
Key Facts
  • Increased J&K Legislative Assembly seats from 83 to 90
  • Additional seats designated to accommodate displaced Kashmiri Pandits and migrants
  • Promulgated by President under Article 123 when Parliament was not in session; subsequently replaced by an Act of Parliament
Important Points
  • Art. 123: President may promulgate ordinances during recess of Parliament; ordinance has same force as Act of Parliament
  • Art. 213: Governor ordinance power for State Legislatures — J&K is a UT with legislature; President (not Governor) exercises ordinance power via Art. 239AA framework
  • Art. 170: Composition of State Assemblies — 60 to 500 seats; J&K Assembly fixed at 90 seats post-Ordinance
  • J&K Reorganisation Act, 2019: J&K UT has legislature; Article 239AA-type special provisions do not apply; Parliament directly governs via ordinary legislation
  • D.C. Wadhwa (1987): Ordinances cannot be re-promulgated repeatedly to bypass the legislature; this Ordinance was promptly replaced by an Act, consistent with constitutional norms
  • Delimitation Commission for J&K (2022): Fixed 90 assembly segments — Ordinance formalised this through statutory amendment
  • Kashmiri Pandit representation: Nominated/reserved seats for displaced community — reflects special constitutional accommodation under reorganisation framework
TOPIC 73

The Salaries and Allowances of Officers of Parliament (Amendment) Ordinance, 2023

Ordinances
Why in News
  • This routine administrative Ordinance revised allowances for Members of Parliament under the Salaries and Allowances of Officers of Parliament Act.
  • Its relevance lies in the procedural constitutional question it illustrates — when can the President promulgate ordinances, and what oversight does Parliament exercise over such executive legislative action?
Key Facts
  • Revised salaries and allowances of Members of Parliament under the parent Act
  • Promulgated under Article 123 during Parliament's recess — routine administrative ordinance
  • Subsequently approved by Parliament within the mandatory 6-week reassembly window
Important Points
  • Art. 123(1): President may promulgate ordinances when both Houses (or one House) are not in session and the President is satisfied that circumstances exist requiring immediate action
  • Art. 123(2): Ordinance has same force and effect as an Act of Parliament; shall be laid before both Houses and ceases to operate 6 weeks after reassembly
  • Art. 123(3): Ordinance ceases if: (a) disapproved by resolution of a House; (b) 6 weeks elapsed after reassembly; (c) withdrawn by President
  • Art. 106: MPs entitled to salaries and allowances as Parliament determines — Salaries Act derives from this provision
  • R.C. Cooper v. UoI (1970): SC held President's satisfaction for Ordinance promulgation is justiciable — can be challenged if no urgency/mala fide
  • D.C. Wadhwa (1987): Repeated ordinances without legislature being given chance to deliberate = fraud on Constitution
  • AK Roy v. UoI (1982): Ordinance-making power is co-extensive with legislative powers of Parliament; President can only ordinance on matters Parliament can legislate
TOPIC 74

State Ordinances — Maharashtra, Rajasthan, UP (2023–25)

Ordinances
Why in News
  • Multiple States promulgated ordinances on politically sensitive subjects — particularly reservations and land acquisition — in 2023–25, raising concerns about repeated re-promulgation violating the D.C. Wadhwa (1987) principle.
  • The pattern of using ordinances to bypass legislative deliberation on constitutional matters is a key UPSC governance theme.
Key Facts
  • Maharashtra, Rajasthan, and UP promulgated multiple ordinances on reservation quotas, land acquisition, and other sensitive policy matters in 2023–25
  • Key concern: Repeated re-promulgation of similar ordinances without placing them before the State Legislature — pattern identified as violation of D.C. Wadhwa principle
Important Points
  • Art. 213: Governor can promulgate ordinances when State Legislature is not in session; same conditions as Art. 123 for Parliament
  • Art. 213(2): State ordinance ceases to operate 6 weeks after reassembly; must be laid before both Houses
  • D.C. Wadhwa v. State of Bihar (1987): SC held systematic re-promulgation of ordinances without legislative approval = fraud on Constitution; violates Art. 123 / 213 scheme
  • Krishna Kumar Singh v. State of Bihar (2017): SC (7-judge bench) held that even when an ordinance lapses without being placed before legislature, rights and obligations created under it must be examined for their validity
  • Governor's Satisfaction: Like the President, Governor's satisfaction for ordinance promulgation is subject to limited judicial review — not absolutely immune
  • Reservation ordinances: States circumventing 50% ceiling (Indra Sawhney limit) through ordinances — such ordinances face FR challenge under Arts. 14, 15, 16
  • Emergency Legislation vs. Deliberative Legislation: Ordinances must address genuine urgency — political convenience alone is insufficient justification
TOPIC 75

Ordinance-Making Power — Articles 123 and 213

Ordinances
Why in News
  • Ordinance-making power remains a constitutional flashpoint — States using ordinances for reservation policies, land laws, and governance decisions bypass legislative scrutiny.
  • The GNCTD Ordinance 2023 (Delhi services) is the most high-profile recent example.
  • Constitutional framework under Articles 123 and 213 is a frequently tested UPSC static topic.
Key Facts
  • Art. 123: President may promulgate ordinances during recess of Parliament — has same force as an Act of Parliament
  • Art. 213: Governor can promulgate ordinances when State Legislature is not in session — same conditions and limitations
  • Ordinance ceases to operate: 6 weeks after reassembly of Parliament/Legislature; or if a resolution disapproving it is passed
  • D.C. Wadhwa Case (1987): SC held repeated re-promulgation without placing before legislature = fraud on the Constitution
  • Ordinances CANNOT be used to amend the Constitution (Art. 368 amendment requires full parliamentary process)
  • Ordinances CAN be issued only on subjects on which the respective legislature can make laws
Important Points
  • Art. 123(1): President's satisfaction that circumstances require immediate action — prerequisite for ordinance; not an absolute power
  • Art. 123(3): Ordinance ceases if disapproved by House resolution OR 6 weeks after reassembly — automatic lapse mechanism
  • Art. 213: Governor's ordinance power is exactly parallel to President's; same conditions, same limitations, same judicial scrutiny
  • R.C. Cooper v. UoI (1970): President's/Governor's satisfaction is justiciable if mala fide or without application of mind — not absolutely immune
  • A.K. Roy v. UoI (1982): Ordinance-making power co-extensive with legislative power; cannot ordinance outside legislative competence
  • Krishna Kumar Singh v. State of Bihar (2017): 7-judge bench; ordinance that lapses without legislature action creates a "void" — rights created must be legislatively re-enacted to survive
  • Limits: Cannot amend Constitution; cannot be promulgated when both Houses are in session (even if one is in session, specific conditions apply)

Batch 5 Revision Complete (Topics 72–75)

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