Actual Article
Article 123: Power of President to promulgate Ordinances during recess of Parliament
- Ordinance Making Power:
- 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.
- Laying Before Parliament:
- 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.
- b) May be withdrawn at any time by the President.
- Restrictions:
- 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.
UPSC Notes for Article 123
Explanation:
- Ordinance Making Power:
- The President can issue Ordinances when Parliament is not in session if immediate action is needed.
- Ordinances are temporary laws with the same force and effect as Acts of Parliament.
- Laying Before Parliament:
- Ordinances must be presented to both Houses of Parliament when they reassemble.
- Ordinances cease to be effective six weeks after Parliament reconvenes unless approved by both Houses.
- If both Houses pass resolutions disapproving the Ordinance, it ceases to operate.
- The President can also withdraw an Ordinance at any time.
- Restrictions:
- Ordinances cannot make provisions beyond the legislative competence of Parliament.
Key Points:
- Temporary Legislative Power: Allows the President to address urgent matters when Parliament is not in session, ensuring governance is not hampered.
- Parliamentary Oversight: Ordinances require parliamentary approval to remain in force beyond six weeks, ensuring legislative oversight and control.
- Constitutional Limits: Ordinances must adhere to the legislative competence of Parliament, maintaining constitutional boundaries.
Important Cases and Commissions Related to Article 123
Cases:
- D.C. Wadhwa vs. State of Bihar (1987): The Supreme Court held that the re-promulgation of ordinances without placing them before the legislature constitutes a fraud on the Constitution and is subversive of the democratic process.
- R.K. Garg vs. Union of India (1981): The Supreme Court emphasized that the President’s satisfaction in promulgating an ordinance is justiciable if it is challenged on grounds of mala fide or being contrary to the Constitution.
Commissions:
- Sarkaria Commission: Highlighted the importance of Ordinances and recommended measures to ensure they are used sparingly and with sufficient justification.
- National Commission to Review the Working of the Constitution (NCRWC) (2002): Suggested reforms to restrict the misuse of the Ordinance-making power and to ensure better legislative oversight.
Previous Year Prelims Questions Related to Article 123
- (UPSC Prelims 2016) Which of the following statements regarding the power of the President to promulgate Ordinances is correct?
- A. It can be exercised when either House of Parliament is in session.
- B. It has the same force and effect as an Act of Parliament.
- C. It does not require parliamentary approval to continue beyond six weeks.
- D. It can be exercised only on the advice of the Prime Minister. Correct Answer: B. It has the same force and effect as an Act of Parliament.
- (UPSC Prelims 2019) An Ordinance promulgated by the President:
- A. Is a permanent law
- B. Must be laid before both Houses of Parliament when they reassemble
- C. Does not cease to operate if disapproved by both Houses
- D. Can be issued only for financial matters Correct Answer: B. Must be laid before both Houses of Parliament when they reassemble.
Previous Year Mains Questions Related to Article 123
- Mains 2017: “Discuss the significance of the Ordinance-making power of the President under Article 123. How does this provision ensure continuity in governance during parliamentary recess?”
- Mains 2019: “Analyze the checks and balances provided in Article 123 to prevent the misuse of the President’s Ordinance-making power. How does this article uphold democratic principles?”
Additional Insights:
- Ensuring Governance: Article 123 ensures that urgent matters can be addressed even when Parliament is not in session, preventing administrative paralysis.
- Temporary Nature: The temporary nature of Ordinances requires them to be reviewed and approved by Parliament, reinforcing the principle of legislative supremacy.
- Judicial Review: The President’s satisfaction in issuing an Ordinance is subject to judicial review, ensuring that the power is not misused.
Understanding Article 123 is crucial for UPSC aspirants as it outlines the President’s power to promulgate Ordinances, ensuring continuity in governance while maintaining parliamentary oversight and adherence to constitutional limits. This knowledge is essential for both preliminary and main examinations, offering a comprehensive understanding of the provisions that govern temporary legislative actions within India’s constitutional framework.