Article 123 of Constitution of India: Power of President to Promulgate Ordinances

Article 123 of the Constitution of India gives the President a temporary law-making power when Parliament is not fully in session and circumstances require immediate action. An Ordinance has the same force and effect as an Act of Parliament while it remains in operation, but it is subject to constitutional limits, parliamentary control and judicial review.

What is Article 123 of the Constitution of India?

Article 123 is part of Chapter III of Part V of the Constitution. It deals with the President's legislative power to promulgate an Ordinance during the recess of Parliament. The power is intended to meet circumstances requiring immediate legislative action when the ordinary parliamentary process cannot operate because both Houses are not in session.

Article 123: Power of President to promulgate Ordinances during recess of Parliament

Clause (1): Except when both Houses of Parliament are in session, the President may promulgate an Ordinance if satisfied that circumstances exist which make immediate action necessary.

Clause (2): An Ordinance has the same force and effect as an Act of Parliament. It must be laid before both Houses and ordinarily ceases to operate six weeks after Parliament reassembles. It may also cease earlier if both Houses pass resolutions disapproving it, and it may be withdrawn by the President.

Explanation to clause (2): If the two Houses reassemble on different dates, the six-week period is counted from the later date.

Clause (3): An Ordinance is void to the extent that it contains a provision which Parliament itself would not be constitutionally competent to enact.

When can the President promulgate an Ordinance?

The constitutional condition is that both Houses of Parliament must not be in session at the relevant time. In addition, circumstances must exist which, in the President's satisfaction, require immediate action. In the constitutional scheme, the President ordinarily exercises executive functions on the aid and advice of the Council of Ministers under Article 74.

Legal effect and duration of an Ordinance

While in force, an Ordinance has the same force and effect as an Act of Parliament. This does not make an Ordinance permanent legislation. Article 123 requires parliamentary consideration after reassembly. Unless replaced by legislation or otherwise dealt with, the Ordinance ceases to operate six weeks after Parliament reassembles. If the Houses reassemble on different dates, the later date is used to calculate the six-week period.

Parliamentary control over Ordinances

  • The Ordinance must be laid before both Houses of Parliament.
  • Both Houses may pass resolutions disapproving the Ordinance.
  • The Ordinance automatically ceases after the constitutionally prescribed six-week period unless legislation is enacted to continue the legal framework.
  • The President may withdraw the Ordinance at any time.

Constitutional limits and judicial review

The Ordinance-making power is not an independent or unlimited source of legislative competence. Under Article 123(3), an Ordinance is void to the extent Parliament could not validly enact the same provision. The Supreme Court has also treated Ordinance-making as an exceptional constitutional power and has held that re-promulgation cannot be used as a routine substitute for legislation.

In Krishna Kumar Singh v. State of Bihar, a seven-Judge Bench of the Supreme Court examined the constitutional limits of Ordinance-making and the consequences of an Ordinance ceasing to operate. The decision emphasizes legislative accountability and the requirement that Ordinances be placed before the legislature rather than repeatedly re-promulgated to bypass the legislative process.

Difference between Article 123 and Article 213

Article 123 concerns Ordinances promulgated by the President in relation to Parliament and Union legislative power. Article 213 provides a broadly corresponding Ordinance-making power to the Governor when the State Legislature is not fully in session, subject to the conditions and limitations stated in that Article.

Key points about Article 123

  • Nature: Temporary legislative power for circumstances requiring immediate action.
  • Availability: It cannot be exercised when both Houses of Parliament are in session.
  • Legal force: An Ordinance has the same force and effect as an Act of Parliament while operative.
  • Duration: It ordinarily expires six weeks after Parliament reassembles.
  • Legislative competence: It cannot validly contain provisions beyond Parliament's constitutional competence.
  • Review: Exercise of Ordinance-making power is subject to constitutional scrutiny by the courts.

This page is an explanatory legal information article. For the authoritative constitutional text, amendments and current official publication, refer to the Legislative Department, Ministry of Law and Justice, Government of India.