Article 123 of the Indian Constitution gives the President of India the power to promulgate Ordinances when Parliament is not in session.
An ordinance is a temporary law. It has the same force and effect as an Act of Parliament, but it must later be approved by Parliament. The purpose of Article 123 is to allow urgent law-making when immediate action is required and Parliament is not available to pass a law.
Conditions for Promulgation
The President can issue an ordinance only when certain conditions are satisfied.
First, both Houses of Parliament must not be in session, or at least one House must not be in session. This is important because a law cannot be passed when both Houses are not available for legislative work.
Second, the President must be satisfied that circumstances exist which require immediate action.
Third, the ordinance can be issued only on matters on which Parliament has the power to make laws.
In practice, the President acts on the advice of the Council of Ministers. Therefore, ordinance-making is not the personal law-making power of the President. It is an executive power exercised through the President.
Force and Duration
An ordinance issued under Article 123 has the same force and effect as an Act of Parliament.
However, it is temporary.
It must be laid before both Houses of Parliament when they reassemble. It will cease to operate six weeks after the reassembly of Parliament, unless Parliament approves it earlier.
An ordinance can end in three ways:
- Parliament passes a law replacing it
- Parliament disapproves it
- it automatically lapses after six weeks from reassembly
The President can also withdraw an ordinance at any time.
This means Article 123 gives temporary legislative power to the executive, but final authority remains with Parliament.
Constitutional Importance
Article 123 is important because it deals with urgent governance situations.
Sometimes immediate legal action may be necessary for financial, administrative, security, health or policy reasons. If Parliament is not in session, the government may need a temporary legal instrument. Article 123 provides that mechanism.
But the provision also maintains democratic control by requiring the ordinance to be placed before Parliament.
So, Article 123 creates a balance between:
- need for urgent executive action
- supremacy of Parliament in law-making
- temporary nature of ordinance power
- legislative accountability
The ordinance power is an exception to the normal law-making process, not a substitute for Parliament.
Judicial Interpretation
The Supreme Court has placed important limits on ordinance-making power.
In D.C. Wadhwa v. State of Bihar, 1987, the Court held that repeated re-promulgation of ordinances without placing them before the legislature is unconstitutional. The Court called it a fraud on the Constitution.
In Krishna Kumar Singh v. State of Bihar, 2017, the Supreme Court held that re-promulgation of ordinances is a serious violation of constitutional principles. It also held that the President’s or Governor’s satisfaction can be subject to judicial review in appropriate cases.
These judgments make it clear that ordinances cannot be used to bypass legislative debate or permanently rule through executive law-making.
Misuse and Concerns
The main concern with Article 123 is the misuse of ordinance power.
Governments may use ordinances to avoid parliamentary scrutiny or push controversial laws quickly. This weakens deliberation, debate and accountability.
Major concerns include:
- bypassing Parliament
- avoiding legislative debate
- repeated re-promulgation
- use of ordinances for non-urgent matters
- weakening separation of powers
- increasing executive dominance
The President’s ordinance-making power must therefore be used only in exceptional situations where immediate action is genuinely required.
Conclusion
Article 123 gives the President power to promulgate ordinances when Parliament is not in session and immediate action is necessary.
An ordinance has the force of law, but only for a temporary period. It must be placed before Parliament and can continue only if Parliament approves it.
The provision is useful for urgent governance, but its misuse can weaken parliamentary democracy. Therefore, Article 123 must be understood as an emergency legislative power of the executive, controlled ultimately by Parliament and constitutional principles.
