Article 109

Article 109 of the Constitution of India endows the President with the authority to issue ordinances when both Houses of Parliament are not in session, thereby furnishing a mechanism for immediate legislative action in emergencies or unforeseen circumstances. Unlike ordinary statutes, an ordinance enjoys the full force of law from the moment of promulgation but is subject to stringent parliamentary oversight: it must be presented before the Lok Sabha and Rajya Sabha within six weeks of their re‑assembly, and it lapses automatically if either House does not pass it within that period. This dual‑track design balances the need for swift governance with the principle of democratic legitimacy.

Historical Background

The ordinance power was incorporated into the original Constitution adopted on 26 January 1950, reflecting the framers’ experience with colonial emergency legislation. The drafters, led by Dr B. R. Ambedkar, intended the provision to act as a stop‑gap, not a substitute for regular parliamentary law‑making. Since 1950, the President has promulgated more than 200 ordinances, a figure that underscores both the utility and the occasional controversy of the power. Notable early uses include ordinances on land reform in the 1950s and the 1975 ordinance that temporarily extended the term of the Lok Sabha during the national Emergency, later ratified by Parliament.

Mechanism of Promulgation

Article 109(1) authorises the President, on the advice of the Council of Ministers, to “promulgate any ordinance for the time being required to be enforced” when Parliament is not in session. The ordinance is signed by the President and gazetted, taking effect immediately. Within six weeks of the first sitting after the re‑assembly of either House, the ordinance must be laid before both the Lok Sabha and the Rajya Sabha, as mandated by Article 109(2). Each House may then pass a resolution either approving the ordinance, thereby converting it into an Act, or rejecting it, which causes the ordinance to cease to operate. If neither House acts within the six‑week window, the ordinance automatically expires, a safeguard that prevents indefinite executive rule.

Key Provisions

• •Article 109(1) – Grants the President the power to promulgate ordinances when Parliament is not in session.
• •Article 109(2) – Requires that every ordinance be laid before both Houses and stipulates the six‑week expiry rule.
• •Article 368 – Implicitly limits the ordinance power by reserving constitutional amendments to the ordinary legislative process; ordinances cannot amend the Constitution.
• •Article 123 – Provides a parallel but distinct power to the President to promulgate ordinances when a Bill is pending in Parliament, illustrating the nuanced separation of executive legislative tools.

Judicial Scrutiny and Limits

The Supreme Court has periodically examined the scope of Article 109, most prominently in S. R. Bommai v. Union of India (1994), where the Court affirmed that ordinances are subject to the same constitutional constraints as statutes, including the prohibition against violating fundamental rights. In Union of India v. R. K. Saxena (1975), the Court held that the President’s ordinance power cannot be used to circumvent the bicameral legislative process for matters that require a bill’s passage in both Houses. These judgments reinforce the principle that ordinances are temporary instruments, not a means to bypass parliamentary debate.

Current Practice and Significance

In recent decades, the ordinance route has been invoked for urgent policy needs such as the 2020 ordinance providing immediate relief measures during the COVID‑19 pandemic, later superseded by the Epidemic Diseases (Amendment) Act, 2020. The frequency of ordinance use peaked during periods of political instability, notably in the early 1990s when coalition governments faced legislative deadlock. Critics argue that the power can be misused to sidestep parliamentary scrutiny, prompting periodic calls for reform, including proposals to shorten the six‑week window or to require prior consultation with the Leader of the Opposition.