With reference to the Indian polity, consider the following statements: I. An Ordinance can amend any Central Act. II. An Ordinance can abridge a Fundamental Right. III. An Ordinance can come into effect from a back date. Which of the statements given above are correct?
Contents17
- AI and II only
- BII and III only
- CI and III only
- DI, II and III
Show answer
Answer: (C) I and III only
Let's evaluate each statement about ordinances:
(I) 'Ordinance can amend any Central Act' — CORRECT.
An ordinance promulgated under Article 123 has the same force and effect as an Act of Parliament.
Therefore, it can modify or amend any existing Central Act.
The Supreme Court has affirmed this in multiple cases. ✓
(II) 'Ordinance can abridge a Fundamental Right' — INCORRECT.
An ordinance, like any other law, is subject to the Fundamental Rights guaranteed in Part III of the Constitution.
Article 13(2) states that the State shall not make any law that takes away or abridges Fundamental Rights — and 'law' here includes ordinances.
So an ordinance CANNOT abridge Fundamental Rights.
If it does, it can be struck down by courts as unconstitutional. ✗
(III) 'Ordinance can come into effect from a back date' — CORRECT.
An ordinance can have retrospective (back-dated) effect, just like an Act of Parliament can.
The government can specify that the ordinance applies from a date prior to its promulgation, within constitutional limits.
This has been done in practice, especially for tax-related ordinances. ✓
Statements I and III are correct. Answer is (c).
Article 123 gives the President power to promulgate ordinances when Parliament is not in session, making them equivalent to Acts of Parliament in legal force.
Ordinances cannot override Fundamental Rights under Article 13(2), which declares any law that abridges Part III rights as void - this constitutional limitation applies equally to ordinances and regular legislation.
The question tests whether students understand both the extensive powers of ordinances and their constitutional boundaries, particularly the supremacy of Fundamental Rights over all forms of legislation.
Ordinance Power of President
Indian Polity Ordinance Article 123
President's Ordinance Power: Article 123 & Key Features
Article 123 empowers President to promulgate ordinances when Parliament is not in session
Ordinance has same force as Act of Parliament but is temporary legislation
Can amend existing laws and have retrospective effect
Cannot abridge Fundamental Rights - subject to Article 13(2)
Must be approved by Parliament within 6 weeks of reassembly
Constitutional Basis
Article 123 grants the President ordinance-making power during parliamentary recess. This is an emergency legislative power to address urgent situations when Parliament cannot be convened immediately.
Ordinance vs Act Comparison
Aspect | Ordinance | Act of Parliament |
|---|---|---|
Legal Force | Same as Act | Supreme law (subject to Constitution) |
Duration | 6 weeks after Parliament reassembles | Permanent until repealed |
Amendment Power | Can amend any Central Act | Can amend any law |
Retrospective Effect | Yes - can be back-dated | Yes - if specifically provided |
Fundamental Rights | Cannot abridge (Article 13) | Cannot abridge (Article 13) |
Parliamentary Approval | Must be ratified within 6 weeks | Already has parliamentary sanction |
Constitutional Limitations
Article 13(2) constraint: Cannot make any law that abridges Fundamental Rights
Judicial review: Courts can strike down ordinances violating constitutional provisions
Parliamentary dependency: Dies automatically if not approved within 6 weeks of Parliament reassembly
Satisfaction requirement: President must be satisfied of immediate action necessity
Subject matter: Same legislative competence as Parliament - Union, State, or Concurrent List
Trap: Statement II suggests ordinances can abridge Fundamental Rights - they cannot due to Article 13(2)
Confusion: Students think ordinances have unlimited power - they are subject to same constitutional limits as Acts
Back-dating trap: Many assume ordinances cannot be retrospective - they can have back-dated effect
Amendment confusion: Ordinances can amend existing Central Acts with same force as Parliament
Article 13 & Protection of Rights
Indian Polity Fundamental Right Article 13
Article 13: Constitutional Protection Against Rights Violation
Article 13(2): State cannot make laws that abridge Fundamental Rights
'Law' includes Acts, ordinances, regulations, notifications, customs
Automatic invalidity: Any law violating FR is void to extent of inconsistency
Applies to all state actions including executive ordinances
Core Protection Mechanism
Article 13 creates a constitutional firewall around Fundamental Rights. It ensures that no law-making authority - Parliament, state legislatures, or President through ordinances - can diminish these basic freedoms.
Article 13 Structure
Clause | Provision | Impact |
|---|---|---|
Article 13(1) | Pre-Constitution laws inconsistent with FR are void | Removes colonial-era restrictions |
Article 13(2) | State cannot make law abridging FR | Applies to ordinances and all new laws |
Article 13(3) | Defines 'law' broadly | Includes ordinances, notifications, customs |
Article 13(4) | Nothing in Article 13 applies to constitutional amendments | Parliament can amend FR through Article 368 |
Scope of 'Law' Under Article 13
Acts of Parliament and State Legislatures
Ordinances promulgated by President/Governor
Regulations, notifications by executive authorities
Customs and usages having force of law
Any instrument having legal force and effect
Judicial Review Process
%%{init: {"flowchart": {"wrappingWidth": 460}}}%%
flowchart TD
s1["`**Law/Ordinance Challenged**
Petitioner claims violation of Fundamental Right`"]
s2["`**Court Examines Consistency**
Judicial review under Article 13(2)`"]
s3["`**If Violates FR**
Law declared void to extent of inconsistency`"]
s4["`**Constitutional Remedy**
Fundamental Right restored and protected`"]
s1 --> s2
s2 --> s3
s3 --> s4Ordinance immunity myth: Ordinances are equally bound by Article 13(2) - cannot abridge FR
Amendment confusion: Article 13(4) exempts only constitutional amendments, not ordinary laws/ordinances
Scope trap: 'Law' in Article 13 includes all forms - Acts, ordinances, executive orders
Automatic effect: Violating laws become void automatically - no separate declaration needed
Retrospective Effect in Indian Law
Indian Polity back date retrospective
Retrospective Laws: Back-Dating in Indian Legal System
Retrospective laws apply from a date prior to their enactment
Both Acts and Ordinances can have retrospective effect if specified
Constitutional limits: Cannot violate FR or create ex post facto crimes
Common in tax laws and beneficial legislation
Legal Principle
Retrospective legislation operates from a date before its actual enactment. Both Parliament and President (through ordinances) can create such laws, provided they specify the back-date of operation and stay within constitutional boundaries.
Types of Retrospective Laws
Type | Example | Constitutional Status | Common Use |
|---|---|---|---|
Tax Laws | Income Tax amendments | Valid if within limits | Revenue collection |
Beneficial Laws | Social security schemes | Generally valid | Welfare extension |
Curative Laws | Removing legal defects | Valid for good governance | Legal clarity |
Criminal Laws | Creating new offences | Prohibited by Constitution | Constitutional ban |
Civil Rights | Property acquisition | Valid with compensation | Development projects |
Constitutional Limitations
Article 20(1): No ex post facto criminal laws - cannot create retrospective crimes
Fundamental Rights: Cannot retrospectively abridge FR through back-dating
Reasonable limits: Courts examine whether retrospective effect serves public purpose
Vested rights: Cannot arbitrarily destroy accrued legal rights without justification
Procedural fairness: Must provide reasonable opportunity to affected parties
Ordinance myth: Many think only Acts can be retrospective - ordinances can also have back-dated effect
Criminal law trap: Retrospective criminal laws are banned - only civil laws can generally be back-dated
Automatic validity: Retrospective effect doesn't make law immune from constitutional challenge
Tax law confusion: Tax laws commonly use retrospective effect - it's constitutionally permissible
Parliament vs Ordinance Powers
Indian Polity Central Act amend
Legislative Powers: Parliament vs Presidential Ordinances
Ordinances have same force as Parliamentary Acts when in effect
Amendment power: Both can modify existing Central Acts
Key difference: Ordinances are temporary, Acts are permanent
Subject matter: Both limited by constitutional distribution of powers
Constitutional Framework
The Constitution grants equivalent legislative force to both Parliamentary Acts and Presidential ordinances. The difference lies not in legal power but in temporal duration and democratic process.
Power Comparison Matrix
Legislative Power | Parliament | President (Ordinance) | Constitutional Basis |
|---|---|---|---|
Enact New Laws | Yes | Yes | Articles 107-111 vs Article 123 |
Amend Central Acts | Yes | Yes - same force | Equal legislative power |
Repeal Existing Laws | Yes | Yes | Implied in amendment power |
Retrospective Effect | Yes | Yes - if specified | No constitutional bar |
Abridge FR | No (Article 13) | No (Article 13) | Constitutional limitation |
Duration | Permanent | 6 weeks max | Temporary nature |
Subject Matter | Union + Concurrent | Union + Concurrent | Same legislative competence |
Constitutional Constraints
# Legislative Limitations
## Fundamental Rights
- Article 13(2) prohibition
- Cannot abridge FR
- Judicial review available
## Federal Structure
- State List reserved
- Concurrent List shared
- Union List exclusive
## Constitutional Provisions
- Basic structure doctrine
- Article 368 for amendments
- Procedural requirementsAmendment confusion: Ordinances can amend Central Acts - they have same force as Parliament
Duration trap: Equal power doesn't mean equal duration - ordinances are temporary
Subject matter: Both bound by Seventh Schedule - cannot exceed legislative competence
FR limitation: Neither Parliament nor President can abridge Fundamental Rights through ordinary legislation