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?

(a) I and II only
(b) II and III only
(c) I and III only
(d) I, II and III

The correct answer is (c) I and III only.

Explanation

Statement I: Correct. An Ordinance issued by the President under Article 123 of the Constitution has the same force and effect as an Act of Parliament. The President’s ordinance-making power is co-extensive with the legislative power of Parliament. Since Parliament can pass a law to amend or repeal any existing Central Act, an Ordinance can also be used for the same purpose.
Statement II: Incorrect. An Ordinance is subject to the same constitutional limitations as an Act of Parliament. A primary limitation, under Article 13, is that the state (including Parliament) cannot make any law that abridges or takes away Fundamental Rights. Therefore, an Ordinance, being a law, cannot abridge Fundamental Rights. If it does, it can be challenged in court and struck down as unconstitutional.
Statement III: Correct. Just as Parliament can enact laws with retrospective effect (applying from a date in the past), an Ordinance can also be made to come into effect from a back date. However, this power has the same limitation as a regular law: it cannot create a new criminal offense or increase the penalty for a crime retrospectively (as this is forbidden by Article 20(1) of the Fundamental Rights). For civil and tax matters, retrospective application is permissible.

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The Ordinance-Making Power in India

This question relates to the legislative powers of the executive. Here are the key details:

Constitutional Provisions:
- Article 123: Grants the President the power to issue Ordinances.
- Article 213: Grants the Governor of a state a similar power.
When can it be used? The President can only issue an Ordinance when both Houses of Parliament (or either one) are not in session and he is “satisfied that circumstances exist which render it necessary for him to take immediate action.”
What are the limitations?
1. Session Requirement: Cannot be used when both Houses are in session.
2. Co-extensive Power: An Ordinance can only be issued on subjects on which Parliament has the power to make laws.
3. Fundamental Rights: An Ordinance is subject to the same limitations as any law and can be struck down if it violates Fundamental Rights.
4. Temporary Nature: This is the most crucial limitation. An Ordinance is a temporary law. It must be laid before both Houses of Parliament when they reassemble.
  - It ceases to exist six weeks after the reassembly of Parliament, unless it is approved by both Houses before that.
  - If the Houses reassemble on different dates, the 6-week period is counted from the later of those dates.
5. Judicial Review: The Supreme Court, in cases like D.C. Wadhwa v. State of Bihar, has held that the executive’s power to issue ordinances is not absolute and is subject to judicial review. Repetitive “re-promulgation” of an ordinance without placing it before the legislature is considered a fraud on the Constitution.