Ordinance, Pardon and Emergency Powers of the President: Articles 123, 72, 352 to 360

Ordinance, Pardoning and Emergency Powers of the President: An Overview

Three Extraordinary Powers and What They Share

The ordinance, pardoning and emergency powers of the President are the three powers that let the Union act when ordinary processes cannot: Parliament is not in session, the judicial process has ended, or the security, constitutional order or finances of the country are threatened. Each is exercised on ministerial advice under Article 74.

These powers matter because they suspend ordinary rules. An ordinance makes law without Parliament, a pardon sets aside a court's sentence, and an emergency can shift power from the States to the Union and restrict rights, so each has been heavily litigated and amended.

The significance of these powers lies in the balance the Constitution strikes between speed and control:

• Speed: Each power can be used at once, without waiting for a session, a trial or a legislative debate.
• Parliamentary control: Ordinances and all three emergencies must be approved by Parliament within fixed periods, or they lapse.
• Judicial control: The Supreme Court reviews the satisfaction behind ordinances and President’s rule, and the manner of exercising clemency.

The election and tenure of the office are explained in President of India: Election, Qualifications, Term and Impeachment, and the executive and legislative powers, including assent and veto, in Powers of the President of India. This article covers the three extraordinary powers in turn, with the safeguards that limit each.

Ordinance-Making Power of the President Under Article 123

Conditions for Promulgating an Ordinance

Under Article 123(1), the President may promulgate an ordinance at any time except when both Houses of Parliament are in session, if satisfied that circumstances exist which render immediate action necessary. An ordinance can therefore be made when either House is not sitting.

Under clause (2), an ordinance has the same force and effect as an Act of Parliament. Clause (3) sets the limit: an ordinance is void to the extent that it makes a provision that Parliament itself could not enact under the Constitution. Like other powers, the decision rests with the Council of Ministers, which may be asked to reconsider its advice once.

Life of an Ordinance: Six Weeks After Parliament Reassembles

An ordinance must be laid before both Houses. It ceases to operate six weeks after Parliament reassembles, or earlier if both Houses pass resolutions disapproving it, and the President may withdraw it at any time. When the Houses reassemble on different dates, the six weeks run from the later date.

Because Article 85(1) allows at most six months between sessions, an ordinance that is never approved can survive for about six months and six weeks. To last longer, its provisions must be enacted by Parliament through a replacing Act.

Judicial Review of the President's Satisfaction

In R. C. Cooper v. Union of India, a bench of eleven judges described the power as exercisable in extraordinary situations demanding immediate law, and noted that the President's determination was not declared final. The Thirty-eighth Amendment of 1975 then inserted a clause making the satisfaction immune from scrutiny by any court.

The Forty-fourth Amendment deleted that clause. In A. K. Roy v. Union of India, a Constitution Bench held that whether the preconditions of Article 123 are met cannot be regarded as a purely political question, and that after the deletion judicial review of the satisfaction is not totally excluded.

In 2017 the Court settled the point: the satisfaction of the President under Article 123 is not immune from judicial review. The test is whether it rests on some relevant material; courts do not weigh the sufficiency of that material, but they will intervene if the satisfaction is a fraud on power or rests on an oblique motive.

Re-promulgation: D. C. Wadhwa and Krishna Kumar Singh

The abuse the courts confronted was re-promulgation. Research into Bihar found that the Governor had promulgated and re-promulgated 256 ordinances between 1967 and 1981, some kept alive for fourteen years. In D. C. Wadhwa v. State of Bihar, decided on 20 December 1986, a Constitution Bench held the practice to be a colourable exercise of power.

In Krishna Kumar Singh v. State of Bihar, a seven-judge bench decided on 2 January 2017 that repeated re-promulgation without placing ordinances before the legislature is a fraud on the Constitution. The leading judgment, written by Justice D. Y. Chandrachud for the majority, also rejected the theory that rights created by an ordinance endure automatically after it lapses.

The reasoning explains the separation of powers concern. Re-promulgation, the leading judgment said, is an effort to overreach the legislature, the primary source of law-making, and poses a threat to the sovereignty of Parliament; open legislative debate is what distinguishes accountable law-making from the secrecy of ordinance-making.

Pardoning Power of the President Under Article 72

Five Forms of Clemency Under Article 72

Article 72(1) empowers the President to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of an offence. Each term describes a different degree of relief:

The distinctions are frequently tested. A commutation changes the kind of punishment, a remission changes only its quantity, and a reprieve changes only its timing.

Scope of the Power: Court Martial, Union Laws and Death Sentences

The President's power extends to three classes of case: every punishment or sentence by a court martial, every sentence for an offence against a law on a matter within the executive power of the Union, and every sentence of death. Officers of the armed forces keep their statutory powers to suspend, remit or commute court-martial sentences.

The Governor's parallel power under Article 161 extends only to offences against laws on matters within the executive power of the State. A Governor cannot pardon a death sentence, but Article 72(3) preserves the Governor's power to suspend, remit or commute it.

Exercised on Advice and Subject to Limited Judicial Review

In Shatrughan Chauhan v. Union of India (2014), the Supreme Court described the power under Articles 72 and 161 as a constitutional duty, neither a matter of grace nor of privilege, exercised in aid of justice and on the aid and advice of the Council of Ministers. The President does not act on personal discretion in mercy cases.

The Court has declined to frame guidelines for the power itself. Maru Ram recommended guidelines, but Kehar Singh held them unnecessary, and the Court presumes that a constitutional authority applies its mind. It has also held that the power is above review, while the manner of its exercise is open to limited judicial review.

The recognised grounds, set out in Narayan Dutt v. State of Punjab for a Governor, are that the order was passed without the government's advice, beyond jurisdiction, without application of mind, mala fide, or on extraneous considerations. The same logic governs the President, who acts on the advice of the Union Council of Ministers.

Delay in Mercy Petitions: The Shatrughan Chauhan Guidelines

Decided on 21 January 2014 by a bench of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh, Shatrughan Chauhan held that undue, unexplained and inordinate delay in deciding mercy petitions is a supervening circumstance under Article 21 that can justify commutation. The Court commuted the death sentences of fifteen convicts.

It also treated insanity and solitary confinement as supervening circumstances to be weighed, and laid down procedural safeguards:

• A convict whose mercy petition is rejected must be informed in writing, and the family too.
• Death convicts are entitled as a right to a copy of the rejection order.
• A minimum of fourteen days must separate the communication of rejection and the scheduled execution.

The debate over a fixed time limit for the President continues. The Court chose not to set one, relying instead on delay as a ground for relief; in 2022 it ordered the release of A. G. Perarivalan after criticising the Tamil Nadu Governor for sitting on the State's remission recommendation for about two and a half years.

National Emergency Under Article 352

Grounds and Proclamation: War, External Aggression, Armed Rebellion

Under Article 352(1), the President may proclaim an emergency if satisfied that a grave emergency exists whereby the security of the country or any part of it is threatened by war, external aggression or armed rebellion. A proclamation may be made before the actual occurrence if there is imminent danger, and may cover the whole country or a part.

The Forty-fourth Amendment replaced the words internal disturbance with armed rebellion, with effect from 20 June 1979. Under clause (3), the President cannot issue or vary a proclamation unless the decision of the Union Cabinet, meaning the Prime Minister and the Cabinet Ministers, has been communicated in writing.

Approval, Duration and Revocation of a National Emergency

Every proclamation must be approved by both Houses within one month, each by a majority of its total membership and two-thirds of those present and voting. An approved proclamation lasts six months and may be continued for further six-month periods by fresh resolutions, with no upper limit on the number of extensions.

If the Lok Sabha is dissolved and only the Rajya Sabha has approved, the proclamation survives until thirty days after the new Lok Sabha first sits. The President must revoke a proclamation if the Lok Sabha passes a resolution disapproving it, and one-tenth of its members can require a special sitting within fourteen days to consider such a resolution.

Approval is thus a joint function of both Houses, while revocation lies with the Lok Sabha alone. It differs from a motion of no-confidence, which only the Lok Sabha can pass because the Council of Ministers is collectively responsible to it under Article 75(3), and from impeachment, in which both Houses act.

Effects on Centre-State Relations and Fundamental Rights

Emergency provisions can turn the federal polity into a highly centralised system. During a national emergency the Union may give directions to any State on the exercise of its executive power, and Parliament's laws may confer powers on the Union even on matters outside the Union List. The President may also modify the distribution of revenues under Articles 268 to 279, until the end of the financial year in which the emergency ends.

Under Article 250, Parliament may legislate on any State List matter while an emergency is in operation; such laws lapse six months after it ends. In ordinary times Parliament can do so only under Article 249, when the Rajya Sabha resolves by two-thirds of members present and voting that it is necessary in the national interest.

The life of the Lok Sabha may be extended by law one year at a time while a proclamation is in operation, but not beyond six months after it ends. Two provisions affect fundamental rights, and the Forty-fourth Amendment narrowed both:

National Emergencies Proclaimed Since 1950

A national emergency has been proclaimed three times. President Sarvepalli Radhakrishnan proclaimed the first in 1962 during the war with China; it lasted through the war of 1965 and was revoked in 1968. President V. V. Giri proclaimed the second in 1971, on the eve of the war with Pakistan.

While the second was in force, President Fakhruddin Ali Ahmed proclaimed an emergency on grounds of internal disturbance on 25 June 1975, on the advice of Prime Minister Indira Gandhi; it ended on 21 March 1977, and the second and third proclamations were revoked together in 1977. Its political history is told in The Emergency 1975-77, and its lessons shaped the Forty-fourth Amendment.

President's Rule in the States Under Article 356

Failure of Constitutional Machinery: Grounds and Effects

Under Article 356(1), if the President, on a report from the Governor or otherwise, is satisfied that the government of a State cannot be carried on in accordance with the Constitution, the President may assume the functions of the State government and declare that the powers of the State Legislature shall be exercisable by or under the authority of Parliament.

The President cannot assume the powers of a High Court or suspend the provisions relating to it. Under Article 357, Parliament may confer the State's law-making power on the President, and laws so made continue after the proclamation ends until altered or repealed. The Council of Ministers goes, but dissolution of the Assembly is not automatic: it may be kept in suspended animation.

Article 355 frames the provision: it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that its government is carried on in accordance with the Constitution. Nothing in Article 356 dissolves elected local bodies; the proclamation concerns the State government and legislature.

Approval and Duration: Two Months, Six Months, Three Years

A proclamation must be approved by both Houses within two months. Once approved, it lasts six months from the date of issue and can be continued six months at a time, but never beyond three years, subject to a special provision for Punjab after 1987.

Since the Forty-fourth Amendment, a resolution continuing President's rule beyond one year can be passed only if two conditions are met:

• A national emergency is in operation in the whole country or in the whole or any part of the State.
• The Election Commission certifies that continuance is necessary because of difficulties in holding elections to the State Assembly.

S. R. Bommai and the Limits on President's Rule

Ambedkar told the Constituent Assembly on 4 August 1949 that such articles would, he hoped, never be called into operation and would remain a dead letter. Practice differed: President's rule has been imposed 134 times since 1950, first in Punjab on 20 June 1951, then in PEPSU in 1953 and Kerala in 1959.

Article 356 was used sparingly until 1967, but more often once many States had non-Congress governments. By the time of the Sarkaria Commission, it had been invoked not less than 75 times in 37 years, and the Commission recommended using it very sparingly, in extreme cases, as a measure of last resort.

In S. R. Bommai v. Union of India, decided by nine judges on 11 March 1994, the Court held that a proclamation is not immune from judicial review. Courts can examine whether there was any material, whether it was relevant, and whether the power was used mala fide, though not the advice itself.

The judgment is summarised in a set of principles:

• Majority test: The support of a ministry is to be tested on the floor of the House.
• Conditioned power: The President’s satisfaction must rest on relevant material; Article 356 is not an absolute power.
• Dissolution: An Assembly should be dissolved only when necessary for the purposes of the proclamation, which is subject to the approval of both Houses.
• Secularism: It is part of the basic structure of the Constitution, and a State government that pursues non-secular policies acts contrary to the constitutional mandate.

The practice of dismissing opposition governments was limited only after these strict guidelines. The Governor's role in recommending President's rule is examined further in the articles on the Governor and on Centre-State relations.

Financial Emergency Under Article 360

Grounds, Approval and Duration of a Financial Emergency

Under Article 360(1), the President may proclaim a financial emergency if satisfied that the financial stability or credit of the country or any part of it is threatened. The proclamation must be laid before each House and approved by both within two months, with the same thirty-day rule if the Lok Sabha has been dissolved.

Once approved, a financial emergency continues until it is revoked; unlike the other two emergencies, it needs no periodic renewal. A financial emergency has never been declared, and a clause (5) inserted by the Thirty-eighth Amendment in 1975 was omitted by the Forty-fourth Amendment.

Consequences of a Financial Emergency

While a financial emergency is in operation, the Union's executive authority extends to giving directions to any State to observe canons of financial propriety, and to other directions the President considers necessary. These directions may include:

• Reduction of salaries and allowances of all or any class of persons serving the State.
• Reservation of Money Bills and other financial Bills passed by the State Legislature for the President’s consideration.
• Reduction of salaries and allowances of persons serving the Union, including the judges of the Supreme Court and the High Courts.

The last point matters because it reaches even the judges of the Supreme Court and the High Courts. Financial emergency thus makes the Union the guardian of fiscal discipline in the States, a power the Constitution provides but governments have never used.

Safeguards and Assessment of the Extraordinary Powers

Safeguards Added by the Forty-fourth Amendment

After the emergency of 1975 to 1977, the Forty-fourth Amendment, in force from 20 June 1979, rebuilt the safeguards around these powers:

• National emergency: Armed rebellion instead of internal disturbance, a written Cabinet decision, approval by special majority within one month, and renewal every six months.
• Lok Sabha control: A proclamation must be revoked if the Lok Sabha disapproves it, and one-tenth of its members can force a special sitting.
• Rights: Articles 20 and 21 cannot be suspended, and Article 358 applies only to war or external aggression.
• Review: The clause inserted in 1975 to make the satisfaction under Article 123 final was removed, as was clause (5) of Article 360.

These changes show a clear design choice: the powers remain, but each use must now pass through Parliament and remain open to the courts, so that an extraordinary power cannot become an ordinary way of governing.

Distinguishing Features, Outcomes and Current Debates

Three features distinguish these powers from the President's routine functions:

• Temporary by design: Ordinances lapse, emergencies need renewal, and President’s rule has a three-year ceiling.
• Double control: Parliament approves within fixed periods, and courts review the material behind the satisfaction.
• Advice, not discretion: The Council of Ministers decides, which places political responsibility on the government.

Three observable outcomes follow:

• After 1994, the use of President’s rule to dismiss opposition governments declined under the Bommai guidelines.
• After 2017, re-promulgation of ordinances without placing them before the legislature became constitutionally impermissible.
• After 2014, delay in deciding mercy petitions became a recognised ground for commuting death sentences.

The current debates continue these themes and turn on three questions of institutional balance:

• Timelines: Whether mercy petitions and reserved Bills need fixed deadlines.
• Review: How far courts should examine a Governor’s report recommending President’s rule.
• Ordinances: How often they should substitute for parliamentary debate.

Each question asks the same thing in a different setting: how to keep an extraordinary power available for genuine need while ensuring that Parliament and the courts can still call its use to account.

UPSC Relevance and Previous-Year Questions on These Powers

Where These Powers Fit in the UPSC-CSE Syllabus

These powers belong to General Studies Paper II, under the Executive, Parliament, federalism and emergency provisions. The linked questions from the preliminary examination test exact textual points:

• Ordinances: Made when either House is not in session, under Article 123.
• Pardon: Exercised on advice and subject to limited judicial review.
• Emergency: Approval by both Houses, the Lok Sabha’s term in an emergency, and Article 355.
• Financial emergency: Two months for approval, and judges’ salaries can be reduced.
• President’s rule: What necessarily follows, and what does not.

The linked questions from the main examination ask whether ordinances violate the separation of powers, whether the President should face a time limit on mercy petitions, and what a financial emergency involves. The sections on ordinances, clemency and Article 360 supply the material for each answer.

Sources and Further Reading

• Legislative Department, Ministry of Law and Justice: The Constitution of India
• Supreme Court of India: Krishna Kumar Singh v. State of Bihar, judgment of 2 January 2017
• Supreme Court of India: Shatrughan Chauhan v. Union of India, judgment of 21 January 2014
• Supreme Court of India: S. R. Bommai v. Union of India, judgment of 11 March 1994 (Supreme Court Reports text)
• NCERT: Indian Constitution at Work, Class 11, Chapter 7, Federalism
• Inter-State Council Secretariat: Report of the Sarkaria Commission, Chapter VI, Emergency Provisions
• Lok Sabha Secretariat: Constituent Assembly Debates, Volume IX (4 August 1949)
• Wikipedia: President of India
• Wikipedia: President's rule
• Wikipedia: S. R. Bommai v. Union of India
• Wikipedia: The Emergency (India)
• Wikipedia: Pardon
• Wikipedia: Capital punishment in India
• Wikipedia: A. G. Perarivalan
• Wikipedia: D. Y. Chandrachud