Introduction

The Indian Constitution is the supreme law of the land, providing the framework for governance and the rights and duties of citizens. It is a comprehensive document that outlines the powers and responsibilities of various organs of the government. One such provision is Article 123, which grants the President of India the power to promulgate ordinances during the recess of Parliament.

Understanding Article 123

Article 123 of the Indian Constitution empowers the President to issue ordinances when both houses of Parliament are not in session. An ordinance is an executive order with the same force and effect as an act of Parliament. It allows the government to take immediate action on matters that require urgent attention, without waiting for the next parliamentary session.

The power to promulgate ordinances is vested in the President, who acts on the advice of the Council of Ministers. However, it is important to note that this power is not absolute and is subject to certain limitations and conditions.

Conditions for Promulgation

Article 123 lays down certain conditions that must be fulfilled for the President to exercise the power of promulgating ordinances. These conditions are as follows:

1. The President must be satisfied that circumstances exist which render it necessary for him to take immediate action.
2. The President must be satisfied that the circumstances require the promulgation of an ordinance.
3. The President must be satisfied that the ordinance cannot wait for the next session of Parliament.
4. The President must be satisfied that the ordinance is consistent with the provisions of the Constitution.

These conditions ensure that the power to promulgate ordinances is not misused and that it is exercised only when absolutely necessary.

Duration and Effect of Ordinances

An ordinance issued under Article 123 has the same force and effect as an act of Parliament. However, it is temporary in nature and ceases to operate after six weeks from the reassembly of Parliament. It can also be withdrawn by the President at any time before it is laid before Parliament.

If both houses of Parliament pass a resolution disapproving the ordinance, it ceases to operate from the date of the passing of the resolution. In such a case, any provision of law made by the ordinance shall be deemed to have been repealed.

Scope of Ordinance-Making Power

The power to promulgate ordinances is not unlimited. Article 123 provides for certain matters on which the President can issue ordinances. These matters include subjects on which Parliament has the power to make laws. However, there are certain exceptions to this rule. The President cannot promulgate an ordinance on matters that fall within the exclusive domain of the states.

Furthermore, an ordinance cannot make provisions on matters that are inconsistent with the provisions of the Constitution. It cannot amend or repeal any provision of the Constitution. The power to amend the Constitution lies solely with Parliament.

Judicial Review of Ordinances

The power of the President to promulgate ordinances is subject to judicial review. The courts have the power to examine the validity of an ordinance and strike it down if it is found to be unconstitutional or beyond the scope of the ordinance-making power.

The Supreme Court of India, in various judgments, has laid down the principles for the exercise of the power to promulgate ordinances. It has emphasized that the power should be used sparingly and only in exceptional circumstances. The court has also held that the satisfaction of the President regarding the existence of circumstances justifying the promulgation of an ordinance is not immune from judicial review.

Conclusion

Article 123 of the Indian Constitution grants the President the power to promulgate ordinances during the recess of Parliament. This power enables the government to address urgent matters that cannot wait for the next parliamentary session. However, this power is not absolute and is subject to certain conditions and limitations. The judiciary plays a crucial role in ensuring that the power to promulgate ordinances is exercised within the constitutional framework.

It is important to strike a balance between the need for immediate action and the principles of democratic governance. The power to promulgate ordinances should be used judiciously, keeping in mind the spirit of the Constitution and the principles of good governance.