Ordinance Making Power of the President (Article 123): An Insight into Executive Authority

Legislative Powers of the President

In our exploration of the Indian Constitution, we've traversed through the Executive and Parliament, reaching Chapter III, a single-article chapter that holds significant weight - Article 123. This article delves into the legislative powers bestowed upon the President of India, specifically addressing the intriguing and sometimes contentious topic of ordinance-making power.

Article 123: Power of President to Promulgate Ordinances during Recess of Parliament

(1) Immediate Action in Extraordinary Circumstances: If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render immediate action necessary, Article 123 empowers the President to promulgate Ordinances.

(2) The Force and Effect of an Ordinance: An Ordinance promulgated under this article carries the same force and effect as an Act of Parliament. However, certain conditions apply:

It must be laid before both Houses of Parliament.
It ceases to operate after six weeks from the reassembly of Parliament, unless both Houses pass resolutions disapproving it before the expiration of that period.
The President retains the authority to withdraw the Ordinance at any time.

Explanation: In cases where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks is reckoned from the later of those dates.

(3) Limits on Legislative Authority: Crucially, if an Ordinance makes provisions beyond the legislative competence of Parliament under the Constitution, it becomes void.

Info Bits Related to Ordinance Making Power of the President of India

President's Authority During Parliamentary Recess: The President can issue an ordinance when one of the houses of Parliament is not in session, ensuring the ability to address urgent matters even in the absence of legislative sessions.
Validity Period: The maximum validity of an ordinance is 6 months and 6 weeks. It automatically expires after 6 weeks once both houses of Parliament are in session.
Immediate Action Clause: The ordinance route is envisaged for immediate action. The President can issue an ordinance when circumstances exist that require immediate action, as determined by the President.
Constitutional Amendments: Ordinance route cannot be used for constitutional amendments. Such amendments must follow the regular legislative process.
Governor's Ordinance Making Power: Article 213 deals with the Ordinance making power of the Governor of a state. However, the Governor cannot issue an Ordinance without instructions from the President in specific cases.

Judicial Perspectives on Ordinance Making Power:

Reviewability: In the case of AK Roy vs. Union of India (1982), the Supreme Court affirmed that the President’s Ordinance-making power is subject to judicial review.
Motives Unquestionable: As established in T Venkata Reddy vs. State of Andhra Pradesh (1985), the motives behind the exercise of this power cannot be questioned, similar to the legislative process.
Limitations on Re-promulgation: In DC Wadhwa vs. State of Bihar (1987), the Supreme Court held that courts could strike down re-promulgated ordinances, emphasizing the need for a legitimate legislative process.

Conclusion: Upholding Constitutional Balance

While the ordinance-making power of the President, effectively exercised by the Council of Ministers, offers a tool for immediate legislative action, its judicial reviewability and limitations underscore the delicate balance between executive authority and constitutional checks and balances. Understanding this power provides insights into the nuanced dynamics of India's constitutional governance.