Ordinance Making Power of President: Article 123

Introduction

Article 123 of the Indian Constitution empowers the President to promulgate ordinances when Parliament is not in session. This ordinance-making power serves as a mechanism for the executive to address urgent legislative matters that cannot wait for the next parliamentary session. Ordinances have the same force and effect as laws passed by Parliament but are temporary in nature and require parliamentary approval within a specified time frame to become permanent.

Ordinance Making Power of President

• Article 123: Promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session.
• It comes under the legislative Power of the President.
• Not a Discretionary Power: His power of ordinance-making is not discretionary. The president can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the PM.
  • He can withdraw an ordinance at any time.
• Limitations on Presidential Ordinance-Making Power
  • He can only promulgate an ordinance when Parliament is not in session or when either of the two Houses of Parliament is not in session.
  • He can issue an ordinance only if immediate action is deemed necessary.
  • Co-extensive Power: His ordinance-making power matches Parliament’s authority on all matters except duration.
    • Can be issued only on those subjects on which the Parliament can make laws.
    • Subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights
• Ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.
• Ordinance Approval: An ordinance issued by him should be laid before both the Houses of Parliament when it reassembles. 
  • Both houses must approve it to become Act (Expiry-6 weeks; Max. Life- 6 Months 6 Weeks), If not approved ordinances cease to have effect.
  • Acts done and completed under it remain fully valid and effective. (Before Lapsng of Ordinance)
• Limitations on Presidential Ordinance-Making Power
  • He can only promulgate an ordinance when Parliament is not in session or when either of the two Houses of Parliament is not in session.
  • He can issue an ordinance only if immediate action is deemed necessary.
  • Co-extensive Power: His ordinance-making power matches Parliament’s authority on all matters except duration.
    • Can be issued only on those subjects on which the Parliament can make laws.
    • Subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take away any of the fundamental rights
• Scope: The ordinance can be retrospective. It can amend or repeal parliamentary acts or other ordinances, including tax laws. However, It cannot be issued to amend the Constitution. 
• Subject to Judicial Review: Only when the president is satisfied to take action. According to the 44th CAA, satisfaction is under Judicial Review.
• Cooper Case (1970): SC held that the President’s satisfaction can be questioned in a court on the grounds of malafide.
• D.C. Wadhwa Case (1987): SC held that successive re-promulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to a violation of the Constitution.

Conclusion:

It plays a significant role in ensuring the continuity and efficiency of governance. Its use is subject to certain checks and balances to prevent misuse or abuse of authority. As a constitutional functionary, the President’s exercise of this power must be guided by principles of necessity, urgency, and public interest, with due regard to parliamentary oversight and democratic norms.

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