Article 123

Article 123 of the Constitution of India confers upon the President of India the power to promulgate Ordinances during the recess of Parliament. This extraordinary provision enables the executive to respond to urgent situations requiring immediate legislative intervention when Parliament is not in session. While intended as a tool for emergency governance, the Ordinance-making power is carefully circumscribed by constitutional limitations and subject to legislative scrutiny once Parliament reconvenes.

Constitutional Context and Purpose

Article 123 is a vital part of the legislative framework that ensures the continuity of governance in India. It embodies the principle that the executive can temporarily perform legislative functions in exceptional circumstances but remains accountable to Parliament.
The provision is modelled on Section 42 of the Government of India Act, 1935, which empowered the Governor-General to issue Ordinances. The framers of the Constitution retained this provision to ensure that urgent matters could be addressed even during a legislative recess, but with appropriate constitutional safeguards to prevent misuse.

Conditions for Promulgation

Under Article 123(1), the President may promulgate an Ordinance only under the following conditions:

1. Parliament Not in Session:Both the Lok Sabha and the Rajya Sabha must be out of session, as an Ordinance cannot be issued when either House is in session.
2. Satisfaction of the President:The President must be satisfied that circumstances exist which render it necessary to take immediate action. In practice, this satisfaction is based on the advice of the Council of Ministers, as required under Article 74(1).

Nature and Effect of Ordinances

An Ordinance issued under Article 123 has the same force and effect as an Act of Parliament. It is, in effect, a temporary law made by the executive during a parliamentary recess.
However, unlike ordinary legislation, an Ordinance is a temporary and emergency measure. It derives its authority not from the legislature but from the Constitution itself. It remains subject to parliamentary approval, maintaining the balance between executive efficiency and legislative supremacy.

Procedure: Laying Before Parliament

Every Ordinance promulgated under Article 123 must be laid before both Houses of Parliament when they reassemble.
Upon being laid before Parliament, one of the following outcomes is possible:

• If both Houses approve the Ordinance (either explicitly or by passing a Bill replacing it), it becomes a permanent law.
• If Parliament disapproves the Ordinance or takes no action within the prescribed time limit, the Ordinance ceases to operate.

Duration and Expiry of Ordinances

Under Article 123(2)(a), an Ordinance remains in force for a limited duration:

• It ceases to operate six weeks after Parliament reassembles, unless both Houses pass a resolution disapproving it earlier.
• If the two Houses reassemble on different dates, the six-week period is calculated from the later date of reassembly.
• The President may revoke an Ordinance at any time before its expiry.

Limitations on the Ordinance-Making Power

The Ordinance-making power of the President is not absolute. The following constitutional limitations apply:

1. Legislative Competence:The President cannot promulgate an Ordinance on any subject beyond Parliament’s legislative competence. Ordinances must conform to the division of powers established under the Seventh Schedule.
2. Constitutional Restrictions:An Ordinance cannot contravene the Fundamental Rights enshrined in Part III or any other provision of the Constitution.
3. Judicial Review:The satisfaction of the President under Article 123 is subject to judicial review. Courts may examine whether the preconditions for promulgation — such as the necessity of immediate action — were satisfied.
4. Temporary Nature:Ordinances are temporary and cannot be reissued indefinitely to bypass Parliament, as held by the Supreme Court in D.C. Wadhwa v. State of Bihar (1987).

Judicial Interpretation and Landmark Judgments

The Supreme Court of India has examined the scope, nature, and limitations of Article 123 in several significant cases:

• Keshavananda Bharati v. State of Kerala (1973):The Court upheld the Basic Structure Doctrine, holding that the Ordinance-making power, like other constitutional powers, is subject to constitutional limitations and cannot violate the basic structure.
• Raja Ram Jaiswal v. State of Bihar (1984):The Court emphasised that the President’s satisfaction must be based on genuine necessity and urgency, not on political convenience.
• D.C. Wadhwa v. State of Bihar (1987):The Supreme Court condemned the re-promulgation of Ordinances without placing them before the legislature as a “fraud on the Constitution.” The judgment reinforced the temporary and exceptional character of Ordinances.
• Indian Express Newspapers v. Union of India (1985):The Court reiterated that Ordinance-making power is an executive function with the same force as an Act of Parliament, but its use is subject to judicial scrutiny.
• Tika Ram Awasthi v. State of U.P. (2009):The Court highlighted the importance of parliamentary review of Ordinances to maintain constitutional checks and balances.

Significance of Article 123

Article 123 serves as an essential mechanism in India’s constitutional framework for emergency law-making. Its significance lies in the following aspects:

• Ensures Continuity of Governance: It empowers the executive to respond swiftly to crises when Parliament is not available to legislate.
• Maintains Legislative Oversight: The requirement of placing the Ordinance before Parliament ensures accountability and prevents arbitrary use of power.
• Balances Efficiency and Democracy: It reflects a constitutional balance between the need for prompt action and respect for democratic deliberation.
• Upholds Rule of Law: Judicial review acts as a safeguard against abuse of executive authority under the guise of urgency.

Criticism and Concerns

Despite its utility, the Ordinance-making power has faced consistent criticism:

• Bypassing Parliament: The frequent use of Ordinances to enact laws without parliamentary debate undermines democratic procedure.
• Political Misuse: Successive governments have used Ordinances for political or electoral purposes rather than genuine emergencies.
• Weak Legislative Oversight: Delays in parliamentary review can allow Ordinances to remain in force for extended periods without legislative scrutiny.
• Erosion of Parliamentary Supremacy: Excessive reliance on Ordinances blurs the line between legislative and executive functions.

Related Constitutional Provisions

Article 123 forms part of the broader constitutional scheme governing legislative powers:

• Article 118: Authorises each House to make rules for the conduct of business.
• Article 122: Protects the validity of parliamentary proceedings from judicial inquiry.
• Article 124: Establishes the Supreme Court, which may review the constitutional validity of Ordinances.
• Article 213: Provides a similar Ordinance-making power to the Governor of a State during the recess of the State Legislature.

Practical Implications

In practice, the Ordinance-making power is used to address urgent administrative, economic, or legal matters that require immediate attention. Examples include:

• Financial measures such as taxation amendments or subsidy schemes.
• Legal reforms or extensions of expiring provisions.
• Emergency responses to unforeseen crises or national security concerns.

Constitutional and Democratic Importance

Article 123 reflects the dynamic adaptability of the Indian Constitution. It empowers the executive to act decisively in emergencies while ensuring parliamentary supremacy through mandatory review.
This constitutional provision epitomises the balance between speed and scrutiny, executive authority and legislative control, and flexibility and accountability — hallmarks of a mature parliamentary democracy.

Conclusion

Article 123 stands as a vital constitutional instrument enabling the President to promulgate Ordinances during the recess of Parliament, ensuring uninterrupted governance and responsiveness to urgent national needs. However, its use is bound by strict constitutional safeguards, temporary validity, and mandatory parliamentary review.