Part V: The Union

Legislative Powers of the President

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

--- Original Article ---

(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—

• 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.
• May be withdrawn at any time by the President.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.

Explanations

Article 123 of the Constitution of India grants the President the power to promulgate Ordinances during the recess of Parliament when immediate legislative action is required. This article ensures that the functioning of the government is not hindered during periods when Parliament is not in session, thereby providing flexibility in governance. The power, however, is subject to limitations and checks by Parliament to ensure its temporary nature.

Clause-by-Clause Explanation

Clause (1) – Conditions for Promulgation of Ordinances

The President can issue an Ordinance only when both Houses of Parliament are not in session. The President must be satisfied that circumstances necessitate immediate action. This satisfaction is subjective but must be based on genuine and urgent circumstances. Ordinances provide a temporary solution to issues that require prompt attention, but they are not intended to replace the normal legislative process.

Clause (2) – Force and Duration of Ordinances

Once promulgated, an Ordinance holds the same legal standing as an Act of Parliament. However, it must be presented before both Houses upon reassembly. If Parliament does not approve the Ordinance within six weeks of its reassembly, it ceases to operate. Additionally, if both Houses pass resolutions disapproving the Ordinance before the six-week period ends, the Ordinance will be revoked sooner. The President also has the discretion to withdraw the Ordinance at any time.

Clause (3) – Limitation on the Content of Ordinances

An Ordinance cannot include provisions that Parliament itself is not competent to enact under the Constitution. If it does, such provisions will be considered void. This clause prevents any misuse of the Ordinance-making power by ensuring that the President does not exceed the constitutional mandate.

Real-Life Examples

• Banking Regulation Ordinance, 2020: During the COVID-19 pandemic, the government issued an Ordinance to amend the Banking Regulation Act, 1949, addressing urgent banking sector reforms.
• The Land Acquisition Ordinance, 2014: This Ordinance was promulgated to address land acquisition issues, but faced criticism and was not passed as a law in Parliament, thus lapsing after the six-week period.
• Farm Laws Ordinances, 2020: The government used Ordinance-making power to introduce reforms in the agricultural sector. These were later passed by Parliament but sparked widespread protests, leading to eventual repeal.
• The Enemy Property Ordinance, 2016: This Ordinance was issued to prevent the transfer of enemy properties, showcasing how the power can be used in matters of national security. The Ordinance was re-promulgated several times before being enacted into law.

Historical Context

Article 123 of the Indian Constitution has its roots in colonial-era laws where the Governor-General had similar ordinance-making powers. After independence, the framers of the Indian Constitution included this provision to ensure that critical governance needs could be addressed during parliamentary recesses. The frequent use of Ordinances has sometimes raised concerns about circumventing the normal legislative process, leading to legal and public scrutiny.

Judicial Interpretation and Precedents

The scope of Article 123 has been addressed in multiple Supreme Court rulings. In D.C. Wadhwa v. State of Bihar (1987), the Court held that re-promulgation of Ordinances without legislative approval is unconstitutional. In T.V. Gowda Reddy v. State of Karnataka (1978), the Court emphasized that the power to promulgate Ordinances is only an emergency provision, not an alternative to legislative law-making.

Legislative History

Article 123 of the Indian Constitution was initially introduced as Article 102 of the Draft Constitution and was adopted by the Constituent Assembly on May 23, 1949. The article was incorporated to balance the need for executive flexibility in emergencies with the principle of parliamentary oversight.

Debates and Amendments

During the Constituent Assembly debates on Article 102 (now Article 123), several members proposed amendments aimed at limiting the scope and duration of the Ordinance-making power.

Shri H. V. Kamath proposed an amendment to split Article 102 into two parts. He argued that the President should not have the power to promulgate ordinances even when one House of Parliament is in session. His amendment to replace "when both Houses" with "when one or both Houses" was aimed at restricting the executive power to promulgate ordinances. However, the amendment was rejected as it was seen as unnecessarily restrictive.

Mr. B. Pocker Sahib proposed an amendment to add a proviso ensuring that no ordinance would deprive a citizen of personal liberty without trial by a competent court. He raised concerns about the misuse of ordinances in certain provinces, where citizens were detained without trial, particularly in Madras. This amendment was also rejected as unnecessary, with the assembly placing faith in the responsible use of ordinance power.

Pandit Hirday Nath Kunzru suggested that ordinances should cease to operate within 30 days from promulgation instead of six weeks from the reassembly of Parliament. He also moved to delete the explanation to clause (2), which dealt with the six-week period in cases where the Houses of Parliament reassembled on different dates. These amendments were proposed to limit the time during which the executive could unilaterally make laws, but they were rejected to allow for sufficient flexibility in governance.

Prof. K. T. Shah proposed that an ordinance should be submitted to Parliament as soon as it reassembled and that specific approval from either House should be required for its continuation. He wanted to ensure greater parliamentary oversight of the executive’s ordinance-making power. However, his amendment was not accepted as it was deemed too restrictive.

Sardar Hukum Singh suggested that the President should consult with the Council of Ministers before promulgating ordinances. However, this was considered unnecessary since the President is bound by the advice of the Council of Ministers as per Article 74 of the Constitution. Dr. B.R. Ambedkar clarified that the President does not have independent discretion in these matters.

Several members, including Dr. P. S. Deshmukh and Mr. Tajamul Husain, opposed many of these amendments, stressing that the executive needed sufficient powers during emergencies to ensure the continuity of governance. They expressed confidence that the Ordinance-making power would not be misused.

Ultimately, all proposed amendments were rejected, and the article was adopted in its original form. The adopted Article 102 empowers the President to promulgate ordinances when both Houses of Parliament are not in session. These ordinances cease to operate six weeks after the reassembly of Parliament, or sooner if disapproved by both Houses.

References

• The Constitution of India - Article 123, Power of President to promulgate Ordinances during recess of Parliament.
• D.C. Wadhwa v. State of Bihar (1987).
• T.V. Gowda Reddy v. State of Karnataka (1978).
• Constituent Assembly Debates - Discussions on Article 102 (Draft Article 102).
• Basu, D.D. "Commentary on the Constitution of India".