CONSTITUTIONAL LIMITS ON ORDINANCE-MAKING: RE-PROMULGATION AND EXECUTIVE OVERREACH IN INDIA

Abstract

India has a parliamentary democracy, where the main job of making laws is given to Parliament and to the State Legislatures. But the Union Government and the State Governments are also given the power to issue something called an ordinance when the legislature is not in session, so that they can act in a real emergency (Articles 123 and 213). This paper looks at the constitutional rules on ordinance-making, how the courts have reacted over time, and the recent developments in this area. When the Constitution was being drafted, the idea was simply to fill the gap when Parliament was not sitting. But looking at the case law over the years, this power is increasingly being used by the executive to claim more authority for itself. Using a doctrinal method, this paper studies how the idea of executive necessity and legislative supremacy has developed, using Supreme Court judgments and recent developments from 2025 to 2026, such as the “Supreme Court (Number of Judges) Amendment Ordinance, 2026”. The main argument of this paper is that re-promulgating ordinances again and again, without any checks, amounts to a fraud on the Constitution. This is against the basic structure idea of separation of powers. The paper concludes that the ordinance-making power does serve a constitutional purpose, but that using it again and again is an unconstitutional encroachment on the powers of the legislature. Finally, the paper suggests some institutional safeguards to bring back the primacy of the legislature and protect India's constitutional democracy.

KEYWORDS: Executive Overreach, Judicial Review, Ordinance, Re-promulgation, Separation of Powers.