Context: President of India has promulgated the Supreme Court (Number of Judges) Amendment Ordinance, 2026, to increase the sanctioned strength of Supreme Court judges from 33 to 37 (excluding the Chief Justice of India).
About Ordinance in India:
What is an Ordinance?
- An Ordinance is a temporary law enacted by the Executive head of the country (the President) or a state (the Governor) when the legislature is not in session. It possesses the same legal force, power, and consequences as a regular Act passed by Parliament, allowing the government to take immediate legislative action during emergencies.
Constitutional Articles:
- Union Level (President): Article 123 of the Indian Constitution empowers the President to promulgate Ordinances during parliamentary recess.
- State Level (Governor): Article 213 empowers the Governor of a state to issue similar Ordinances when the state legislature is not in session.
Necessary Conditions for Promulgation:
The Executive cannot issue Ordinances at will; the Constitution mandates specific pre-conditions:
- Legislative Recess: The President can only act when both Houses of Parliament (Lok Sabha and Rajya Sabha) are not in session, or when either of the two Houses is prorogued.
- Immediate Necessity: The President must be satisfied that circumstances exist which render it absolutely necessary to take immediate action.
- Union Cabinet Advice: The President does not act independently; an Ordinance is issued only upon the formal recommendation and approval of the Union Cabinet.
Key Features of the Ordinance Power:
- Equal Footing: An Ordinance has the exact same force, effect, and legal validity as an Act of Parliament.
- Subject Matter Parity: Parliament’s legislative limitations apply to Ordinances too. The President can only issue an Ordinance on subjects where Parliament has the power to make laws (Union List and Concurrent List).
- Retrospective Effect: An Ordinance can be applied retrospectively, meaning it can come into force from a backdate. It can also amend or repeal an existing Act of Parliament or even another Ordinance.
Limitations of Ordinance-Making Power:
- Strict Expiry Window: An Ordinance is strictly temporary. It must be laid before both Houses of Parliament once they reassemble. It automatically ceases to operate 6 weeks from the reassembly of Parliament, unless approved sooner.
- Maximum Lifespan: Since the maximum gap allowed between two sessions of Parliament is 6 months, the maximum possible lifespan of an Ordinance without parliamentary approval is 6 months and 6 weeks.
- Disapproval & Withdrawal: It will immediately cease to operate if both Houses pass resolutions disapproving it before the 6-week period ends. Additionally, the President can withdraw an Ordinance at any time.
- No Constitutional Amendments: An Ordinance cannot be used to amend the Constitution of India.
