Ordinance-Making Power of the President (Article 123)

The president's ordinance power under Article 123 of the Constitution allows the President to promulgate ordinances when Parliament is not in session, giving the Union Executive a way to legislate on an emergency basis for matters that cannot wait for Parliament to reassemble. An ordinance carries the same force and effect as an Act of Parliament, but it is temporary by design and remains tightly bound by constitutional limits and, since 1978, by judicial review.

What Article 123 Provides

Article 123(1) empowers the President to promulgate such ordinances as the circumstances appear to require, but only "at any time, except when both Houses of Parliament are in session" and only when the President is satisfied that circumstances exist that render immediate action necessary. Article 123(2) then fixes the ordinance's fate: it must be laid before both Houses when Parliament reassembles, and it ceases to operate six weeks after reassembly unless Parliament approves it earlier, or unless both Houses pass resolutions disapproving it before that, in which case it lapses on the passing of the second such resolution. The President may also withdraw an ordinance at any time.

When Can an Ordinance Be Issued

An ordinance can be promulgated when both Houses of Parliament are in recess, or even when only one House is not in session — since a law needs the assent of both Houses, one House sitting alone cannot substitute for the ordinance route. An ordinance made while both Houses are actually in session is void. This makes the President's ordinance power a stop-gap, not a parallel channel of legislation running alongside Parliament.

Four Limits on the Power

The ordinance-making power, though wide, is bounded in four distinct ways. First, it can be exercised only during a parliamentary recess, as explained above. Second, the President must be satisfied that circumstances exist that make immediate action necessary; in Cooper v. Union of India (1970), the Supreme Court held that this satisfaction is not beyond question and can be challenged in court on the ground of mala fide — for instance, if a House were prorogued deliberately to bypass parliamentary scrutiny on a controversial matter. The 38th Amendment Act, 1975 had tried to make the President's satisfaction final and outside judicial review, but the 44th Amendment Act, 1978 removed that immunity, restoring justiciability on the ground of mala fide. Third, the ordinance-making power is coextensive with Parliament's own law-making power except for its temporary duration: an ordinance can be issued only on subjects Parliament could otherwise legislate on, and it is subject to the same constitutional limitations as an Act — it cannot, for instance, take away or abridge a Fundamental Right. Fourth, every ordinance must be laid before Parliament on reassembly and lapses within six weeks of reassembly unless approved, giving it a maximum possible life of about six months and six weeks (six months being the longest permissible gap between two parliamentary sessions).

Nature of an Ordinance

An ordinance functions like ordinary legislation in most respects. It can operate retrospectively, that is, take effect from a date before it was issued. It can modify or repeal an existing Act of Parliament or an earlier ordinance, and it can alter or amend a tax law. It cannot, however, be used to amend the Constitution itself. Notably, the ordinance power has no built-in connection to a national Emergency under Article 352 — the President can promulgate an ordinance for any matter within Parliament's competence even when there is no war, external aggression, or armed rebellion underway. It is also not a discretionary power: the President promulgates or withdraws an ordinance only on the advice of the Council of Ministers headed by the Prime Minister.

D.C. Wadhwa v. State of Bihar (1986): Curbing Repeated Re-promulgation

While this case concerned a Governor's ordinance power under the analogous Article 213, its reasoning is treated as squarely applicable to the President's power under Article 123. The Supreme Court found that the Bihar Governor had promulgated 256 ordinances between 1967 and 1981, many of which were kept alive for periods ranging from one to fourteen years through successive re-promulgation of the same text, without any real attempt to secure their passage as Acts through the legislature. The Court held that repeated re-promulgation without placing the ordinance before the legislature for enactment amounts to a fraud on the Constitution, and that an ordinance repromulgated in this manner is liable to be struck down. The exceptional, emergency character of the ordinance power, the Court said, cannot be turned into a substitute for the legislature's ordinary law-making function.

Why the Framers Included It

Dr. B.R. Ambedkar defended the inclusion of the ordinance power in the Constituent Assembly on the ground that it equips the Executive to respond to a situation that arises suddenly while Parliament is not sitting — a mechanism largely absent from other major democratic constitutions, including those of the United States and the United Kingdom. The Lok Sabha's own procedural rules require that whenever a bill is introduced to replace an ordinance, a statement explaining the circumstances that necessitated ordinance legislation must be placed before the House, keeping the exercise of the power under some degree of legislative accountability even after the fact.

UPSC Relevance

Prelims: Know the exact text and structure of Article 123 — the six-week rule from reassembly, the requirement that the ordinance be laid before both Houses, and the four limitations on the power. Be clear that the ordinance power is not tied to a national Emergency and that it can be exercised even when only one House is in recess.

Mains: This topic feeds directly into GS-II questions on legislative powers of the Executive, the separation of powers, and the misuse of ordinances as a substitute for legislative debate. The Cooper and D.C. Wadhwa cases are the standard citations for questions on judicial review of the President's/Governor's satisfaction and on repeated re-promulgation as a constitutional abuse.

FAQ

Q1. Can the President issue an ordinance on any subject? Only on subjects on which Parliament itself could legislate, and subject to the same constitutional limits as an Act of Parliament — including the Fundamental Rights.

Q2. How long can an ordinance remain in force? At most about six months and six weeks: it must be laid before Parliament on reassembly and lapses six weeks after reassembly unless approved, and the gap between two parliamentary sessions cannot exceed six months.

Q3. Is the President's satisfaction under Article 123 open to judicial review? Yes, on the ground of mala fide, as held in Cooper v. Union of India (1970). The 44th Amendment Act, 1978 removed the immunity from review that the 38th Amendment had earlier granted.

Q4. Is issuing an ordinance a discretionary power of the President? No. The President promulgates or withdraws an ordinance only on the advice of the Council of Ministers headed by the Prime Minister.

Q5. What did the D.C. Wadhwa case decide? That repeatedly re-promulgating an ordinance with the same text, without attempting to get it passed as an Act by the legislature, amounts to a fraud on the Constitution and renders the re-promulgated ordinance liable to be struck down.

Quick Revision

• Article 123: President may promulgate ordinances only when Parliament (or at least one House) is not in session.
• Ordinance has the same force as an Act of Parliament but must be laid before both Houses on reassembly.
• Lapses six weeks after reassembly unless approved, or earlier if both Houses pass disapproving resolutions.
• Coextensive with Parliament's legislative power except duration; cannot abridge Fundamental Rights; cannot amend the Constitution.
• Not linked to a national Emergency under Article 352; not a discretionary power — exercised only on ministerial advice.
• Cooper case (1970): President's satisfaction is justiciable on mala fide grounds.
• 38th Amendment (1975) barred judicial review of satisfaction; 44th Amendment (1978) restored it.
• D.C. Wadhwa case (1986): repeated re-promulgation of ordinances without legislative passage is a fraud on the Constitution.

Sources

• Constitution of India, Article 123 — legislative.gov.in
• Cooper v. Union of India, AIR 1970 SC 564 — Supreme Court of India
• D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 — Supreme Court of India

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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