The Constitution of India
Article 123
Power of President to promulgate Ordinances during recess of Parliament
(1) 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.
(2) 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; and
(b) may be withdrawn at any time by the President.
Explanation.—Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) 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.
Why this exists
The Constitution's framers borrowed this idea from the Government of India Act, 1935. Since Parliament cannot always be in session, and governance sometimes needs urgent legal action — for example, responding to an economic crisis or natural disaster — the President (acting on the advice of the Council of Ministers) was given a limited, temporary power to legislate by Ordinance. The safeguards (laying before Parliament, automatic expiry, and the void clause for unconstitutional provisions) were built in to prevent this emergency power from bypassing democratic lawmaking permanently.
How courts read it
The Supreme Court has repeatedly stressed that the Ordinance power is not a parallel source of legislation to be used routinely, but a genuine emergency measure. In R.C. Cooper v. Union of India (1970), the Court held the President's satisfaction under Article 123 is not entirely beyond judicial review if it can be shown to be based on irrelevant grounds. In A.K. Roy v. Union of India (1982) and later in D.C. Wadhwa v. State of Bihar (1987), the Court strongly criticized the practice of re-promulgating the same Ordinance repeatedly without placing it before the legislature, calling it a fraud on the Constitution when done to bypass the legislature altogether. These rulings collectively established that Ordinance-making power, while wide, is subject to judicial scrutiny and cannot substitute for genuine parliamentary lawmaking on an ongoing basis.
Common misconceptions
- Myth: An Ordinance is a permanent law once issued.
Fact: It is temporary — it automatically expires six weeks after Parliament reassembles unless Parliament passes it as a regular law. - Myth: The President can issue Ordinances on any subject freely, bypassing Parliament forever.
Fact: Courts have held that repeatedly re-issuing Ordinances to avoid parliamentary approval is unconstitutional, and an Ordinance cannot cover anything Parliament itself lacks power to legislate on. - Myth: The President's 'satisfaction' to issue an Ordinance can never be questioned in court.
Fact: Judicial decisions like R.C. Cooper v. Union of India have held that this satisfaction can be reviewed if shown to be based on irrelevant or mala fide grounds.