Article 123 of Indian Constitution: President’s Power to Promulgate Ordinances

In the intricate design of the Indian democracy, the President holds certain extraordinary powers, particularly in circumstances that demand swift action outside the regular functioning of Parliament. Article 123 of the Indian Constitution embodies one such vital mechanism: the power to promulgate ordinances when Parliament is not in session. This provision has significantly shaped the legislative landscape of India, triggering debate and discourse on executive authority, checks and balances, and the spirit of democracy.

The Constitutional Framework of Article 123

What Article 123 Envisions

Article 123 empowers the President of India to issue ordinances that carry the force of law when either of the Houses of Parliament is not in session and immediate legal action becomes necessary. Intended as a safeguard for urgent situations, this provision is a unique blend of executive flexibility and constitutional oversight.

There are, however, clear limitations. The President can issue an ordinance only when satisfied that circumstances exist which render it necessary to take immediate action. Once promulgated, the ordinance must be laid before Parliament and will cease to operate at the expiration of six weeks from the reassembly of both Houses, unless approved by Parliament.

“Ordinance-making isn’t meant to substitute legislative deliberation but to address genuine emergency,” notes constitutional scholar Dr. Madhav Khosla. “Abuse of this power distorts democratic norms and places the executive above legislature.”

Process and Safeguards

To ensure checks and balances, Article 123 introduces specific procedural safeguards:

• Temporary validity: Ordinances lapse within six weeks from the date Parliament reconvenes unless they are converted into law.
• Parliament’s supremacy: Only Parliament can convert an ordinance into a permanent law or allow it to lapse, reaffirming legislative control.
• Justiciability: Courts have the authority to review the satisfaction of the President regarding the necessity of promulgating ordinances.

Notably, the Supreme Court in D.C. Wadhwa vs. State of Bihar (1987) emphasized that repeated re-promulgation of ordinances, bypassing legislative scrutiny, is unconstitutional.

Historical and Contemporary Use of Ordinance Power

Early Practice: Sparing and Strategic Use

In India’s early decades, ordinance powers were sparingly exercised. The framers, mindful of lessons from colonial rule, provided this executive prerogative only for rare emergencies. For example, the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, which nationalized 14 major private banks, was promulgated urgently to pre-empt insider leaks and public disorder before Parliament could meet.

The Shifting Trend: Growing Reliance and Controversy

Over time, successive governments have increasingly turned to ordinance-making—not just for emergencies, but often to push through legislation facing political hurdles. Analysts have noted periods, such as the 1970s and late 1980s, where ordinance issuance spiked dramatically.

A notable contemporary example is the 2014 Land Acquisition Ordinance issued by the NDA government to amend the Right to Fair Compensation and Transparency in Land Acquisition Act. The opposition in Parliament led to repeated promulgation, sparking widespread debate on executive overreach.

Data from the PRS Legislative Research indicates that, during some sessions, nearly 25-30% of all laws enacted were first brought in as ordinances, showing the growing trend of bypassing normal legislative channels.

Ordinance Power as a Tool of Executive Authority

Intended Justifications

The core justification for Article 123 lies in emergencies—natural calamities, financial crises, or abrupt security threats—where delay in lawmaking could undermine national interests. In these moments, swift executive action becomes not just convenient, but necessary.

Criticism and Risk of Misuse

Yet, critics argue that frequent or routine use undermines the separation of powers principle. By using ordinances for contentious reforms—especially those likely to stall in Parliament—the government may sidestep wider democratic debate.

Legal scholar Upendra Baxi highlights the challenge:

“India’s ordinance power must operate within constitutional boundaries. Its misuse, particularly for non-emergency routine governance, dilutes the legislature’s role and weakens public trust in constitutional processes.”

Cases such as Krishna Kumar Singh v. State of Bihar (2017) have reaffirmed that ordinances are not acts of legislative competence but emergency measures, and their re-promulgation without serious justification constitutes a subversion of legislative supremacy.

Real-World Implications and Case Studies

Ordinance Power in Practice

• Economic reforms: Urgency in economic decisions, like the 1991 liberalisation or demonetisation-related measures, often demanded instant legal backing via ordinances.
• Legal and social reforms: The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, addressed a high-profile social issue pending Parliamentary debate.

State-Level Dynamics

Article 213 empowers state governors with analogous ordinance powers, and several Indian states—Bihar, Uttar Pradesh, Maharashtra—have witnessed contentious episodes of ordinance issuance, often leading to litigation on grounds of re-promulgation.

The Supreme Court’s evolving jurisprudence has made it clear: ordinance powers are not a legislative shortcut, but a constitutional last resort.

Comparative Perspectives: India and Beyond

Comparative constitutional studies reveal that few democracies vest such broad ordinance powers in the executive. The Indian model differs from both the U.S.—where the President cannot issue laws independently—and the U.K.—where emergency lawmaking happens through rapid Parliamentary action.

Moreover, countries like Pakistan and Bangladesh borrowed directly from India’s ordinance framework, leading to parallel debates about executive dominance in their parliamentary systems.

Toward Responsible Ordinance-Making: Best Practices and Recommendations

Safeguards and Reforms

Growing judicial interventions, combined with vigilant parliamentary scrutiny, have pressured governments to exercise this power judiciously. Key reforms proposed by constitutional experts include:

• Mandatory post-promulgation disclosure: Detailing reasons and circumstances to Parliament upon reassembly.
• Prohibiting routine re-promulgation: Except in rare, justified cases.
• Time-bound judicial review: Allowing courts to promptly examine the “necessity” clause underpinning urgent ordinances.

Ensuring that ordinance power remains an emergency instrument, not a habitual legislative pathway, will ultimately reinforce both constitutional values and public confidence in democratic governance.

Conclusion

Article 123 remains a crucial yet controversial provision in India’s constitutional scheme, offering agility in lawmaking when Parliament cannot act promptly. While its necessity during genuine crises is clear, its repeated or routine use threatens the delicate equilibrium between executive authority and legislative primacy. The ongoing challenge lies in honoring the original spirit of the Constitution by safeguarding the ordinance power from misuse, ensuring robust debate, and upholding the principle that lawmaking belongs first and foremost to the people’s representatives.

FAQs

What is Article 123 of the Indian Constitution?
Article 123 grants the President of India the authority to issue ordinances when Parliament is not in session, allowing for urgent laws to be made temporarily until Parliament reconvenes.

How long does an ordinance issued under Article 123 remain valid?
An ordinance remains in force for a maximum of six weeks from the date Parliament reassembles unless Parliament passes a law to keep it in force.

Can an ordinance be challenged in court?
Yes, courts can review whether the President’s satisfaction regarding the necessity for an ordinance was genuine, especially in cases of alleged misuse or repeated promulgation.

What are the main criticisms of the ordinance power?
Critics argue that frequent or unnecessary use undermines legislative authority and democratic deliberation, potentially enabling the executive to bypass Parliament.

How does India’s ordinance power compare to other democracies?
Unlike many democracies where emergency lawmaking requires direct parliamentary approval, India’s model allows the executive to issue temporary laws, raising unique questions about checks and balances.

Are there any significant Supreme Court judgments on Article 123?
Landmark cases like D.C. Wadhwa vs. State of Bihar and Krishna Kumar Singh v. State of Bihar have clarified the constitutional limits of ordinance-making, prohibiting routine or unjustified re-promulgation.