Article 123 of the Indian Constitution grants the President the authority to issue ordinances—temporary laws—when either or both Houses of Parliament are not in session, and immediate legislative action is deemed necessary. These ordinances carry the same force and effect as Acts of Parliament but are subject to specific limitations and must be approved by Parliament within a stipulated timeframe.
Original Text
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, if 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(b) may be withdrawn at any time by the President.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.
Detailed Explanation
Article 123 empowers the President to address urgent legislative needs by issuing ordinances when Parliament is not in session. This provision ensures that governance is not hampered during recess periods. However, to prevent misuse, several checks are in place:
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Temporal Limitation: An ordinance must be presented before both Houses of Parliament upon reassembly and will cease to operate six weeks thereafter unless approved.
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Subject Matter Restriction: The President cannot promulgate ordinances on matters outside Parliament’s legislative competence.
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Judicial Review: The necessity and validity of an ordinance can be challenged in courts, ensuring adherence to constitutional provisions.
Detailed Notes
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Conditions for Promulgation:
- Parliament (either or both Houses) must not be in session.
- The President must be satisfied that immediate action is necessary.
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Duration and Approval:
- Ordinances must be laid before Parliament upon reassembly.
- They cease to operate six weeks after reassembly unless both Houses pass resolutions approving them.
- If disapproved by both Houses, the ordinance ceases upon the passing of the second resolution.
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Withdrawal:
- The President can withdraw an ordinance at any time.
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Limitations:
- Ordinances cannot infringe upon fundamental rights.
- They must adhere to the constitutional distribution of powers.
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Not a Discretionary Power:
- The President exercises this power based on the advice of the Council of Ministers.
Additional Comments
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Historical Context: The ordinance-making power has its roots in colonial-era governance, where the Viceroy had similar powers.
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Judicial Scrutiny: Courts have emphasized that this power is to be used sparingly and only under genuine necessity.
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Comparison with States: State Governors have analogous powers under Article 213, applicable when the state legislature is not in session.
Summary
Article 123 serves as a vital tool for the executive to address urgent legislative requirements during periods when Parliament is not in session. While it ensures continuity in governance, the provision is circumscribed by temporal, subject matter, and procedural limitations to prevent executive overreach. The necessity for immediate action, coupled with subsequent parliamentary approval, acts as a safeguard, maintaining the balance between executive expediency and legislative oversight.cls