Article 123 — Ordinance-Making Power of the President

Article 123 of the Constitution of India vests in the President the power to promulgate ordinances during the recess of Parliament, conferring upon the executive a temporary legislative authority co-extensive with that of Parliament itself. The provision traces its lineage to Section 72 of the Government of India Act, 1935, which granted the Governor-General analogous emergency law-making power, and the Constituent Assembly retained it deliberately to address situations demanding immediate legislative intervention when the legislature cannot be convened. Dr. B. R. Ambedkar defended the clause on 22 May 1949 as a necessary instrument for emergencies, while critics warned of executive overreach. The parallel power at the state level resides in Article 213, exercised by the Governor. Because an ordinance carries the same force and effect as an Act of Parliament, Article 123 is among the few constitutional devices that allow the executive to legislate directly, subject to defined temporal and substantive constraints.

The procedural mechanics are precise. Under Article 123(1), two conditions must coexist: at least one House of Parliament must not be in session, and the President must be satisfied that circumstances exist rendering immediate action necessary. The President acts on the aid and advice of the Council of Ministers as mandated by Article 74(1), so in practice the ordinance originates with the Union Cabinet, is drafted by the concerned ministry, vetted by the Ministry of Law and Justice, and forwarded for presidential assent. Once promulgated, the ordinance has the same force as a statute. Article 123(2) then requires that the ordinance be laid before both Houses when they reassemble, and it ceases to operate at the expiration of six weeks from the date of reassembly—or earlier if both Houses pass resolutions disapproving it. Where the two Houses reassemble on different dates, the six-week period is reckoned from the later date.

Several variants and limits frame the power. An ordinance may be withdrawn at any time by the President under Article 123(2)(b). Article 123(3) makes clear that an ordinance contravening any provision the Constitution forbids Parliament from enacting is void—the President's competence is precisely bounded by Parliament's own legislative field. Originally the President's "satisfaction" was rendered non-justiciable by the 38th Amendment (1975), but the 44th Amendment (1978) deleted that bar, restoring judicial review of the existence of the precondition. To convert an ordinance into permanent law, the government must secure passage of a corresponding bill within the six-week window; failure means the ordinance lapses, though rights and liabilities already accrued may survive depending on the subject matter. Re-promulgation—issuing a fresh ordinance to perpetuate a lapsed one without parliamentary approval—has been the principal abuse the courts have sought to curb.

Contemporary practice illustrates both routine and contested use. The Union government promulgated three farm ordinances in June 2020—the Farmers' Produce Trade and Commerce Ordinance, the Farmers Agreement on Price Assurance Ordinance, and the Essential Commodities (Amendment) Ordinance—later enacted and ultimately repealed in November 2021 after sustained protest. The Indian Medical Council (Amendment) Ordinance of 2017 and the Muslim Women (Protection of Rights on Marriage) Ordinance, re-promulgated in 2018 and 2019 to outlaw instant triple talaq before its eventual enactment, exemplify the ordinance route to politically sensitive reform. The Banking Regulation (Amendment) Ordinance of May 2017 empowered the Reserve Bank of India to direct insolvency proceedings against defaulting borrowers, demonstrating the device's use for time-sensitive economic regulation.

Article 123 must be distinguished from adjacent instruments. It differs from a money bill or ordinary bill, which require completed parliamentary passage; an ordinance is law before any debate. It is distinct from delegated or subordinate legislation under a parent statute, because the ordinance itself occupies the primary-legislation tier rather than filling in detail under an enabling Act. It differs from the President's promulgation of a proclamation of Emergency under Article 352 or President's Rule under Article 356, which alter the constitutional distribution of power rather than enacting substantive law. Finally, Article 213 mirrors Article 123 for Governors but adds the requirement of presidential instructions in specified cases, a federal safeguard absent at the Union level.

The jurisprudence on abuse is decisive. In D. C. Wadhwa v. State of Bihar (1987), the Supreme Court condemned Bihar's practice of re-promulgating ordinances—some kept alive for years through 256 successive ordinances—as a "fraud on the Constitution" and a subversion of the democratic legislative process. The watershed came in Krishna Kumar Singh v. State of Bihar (2017), where a seven-judge bench held that re-promulgation without laying ordinances before the legislature is unconstitutional, that the duty to place an ordinance before Parliament is mandatory, and that the President's satisfaction is subject to judicial review on grounds of relevance and good faith, though not on the merits of the policy. The Court further held that rights and liabilities do not automatically endure once an ordinance lapses unless the public interest or irreversibility so requires.

For the working practitioner, Article 123 is a barometer of executive-legislature balance. A desk officer drafting policy must calendar the six-week sunset and plan the corresponding bill's introduction in the immediately following session. A journalist or analyst tracking governance should read frequent ordinance use as a signal of either legislative gridlock or executive impatience with parliamentary scrutiny. Researchers comparing parliamentary democracies will note that India's ordinance power is more expansive than the regulatory decree authority of most Westminster systems, making the Krishna Kumar Singh safeguards central to any assessment of how India reconciles emergency efficiency with deliberative accountability.