Ordinance Making Power of the President (Article 123)

We have so far covered Chapter 1 (Executive : Articles 52-78) and Chapter 2 ( Parliament : Articles : 79-122) under the Part 5 : The Union (Articles 52-151). Chapters 3 stands out with a single article chapter with Article 123 dealing with the legislative powers of the President of India. Article 123 speaks about the power of President to promulgate Ordinances during recess of Parliament. As this power is often misused (by COM), the ordinance making power is often a debatable topic, and hence important for UPC Civil Services mains.

CHAPTER III : LEGISLATIVE POWERS OF THE PRESIDENT

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

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance –
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, of before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

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Info Bits Related With Ordinance Making Power of the President of India

  • President can issue ordinance when one of the houses of the Parliament is not in session.
  • The maximum validity of an ordinance is 6 months and 6 weeks.
  • An ordinance will expire after 6 weeks once both houses of the Parliament are in session.
  • A constitutional amendment cannot be made through ordinance route.
  • Ordinance route is envisaged for immediate action ie. if President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
  • Article 213 deals with the Ordinance making power of the Governor of a state. However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill ie  (a) if a Bill containing the same provisions would have required the previous sanction of the President for introduction into the legislature; (b) if the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; and (c) if an Act of the legislature containing the same provisions would have been invalid unless it received the assent of the President.
  • NB: With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers. While the Ordinance is promulgated in the name of the President and constitutionally to his satisfaction, in fact, it is promulgated on the advice of the Council of Ministers.
  • Also, please understand that the ordinance making power with the President (in reality COM) is a case of sub-ordinate legislation, where the actual law making authority – Parliament – delegates its power to the executive, when the Parliament is in recess.
  • In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.
  • In T Venkata Reddy vs. State of Andhra Pradesh (1985), the Court held that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.
  • In DC Wadhwa vs. State of Bihar (1987), the  Supreme Court held that courts could strike down re-promulgated ordinances.

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