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UPSC MainsGeneral Studies Paper IIndian PolityPractice question

Ordinance Making Power under Article 123

Critically examine the ordinance making power of the President under Article 123. Is it a necessary constitutional device or a potential source of executive overreach?

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How to approach

Introduce Article 123 by explaining its constitutional purpose and core conditions. Analyze its necessity as an emergency tool and contrast this with instances and risks of executive overreach. Discuss the judicial safeguards developed over time, concluding with the need to uphold constitutional morality and parliamentary supremacy.

Model answer

319 words

Introduction

Article 123 of the Constitution empowers the President to promulgate Ordinances when either House of Parliament is not in session and immediate action is deemed necessary. Conceived as a gap-filling mechanism rather than a parallel track of legislation, the power seeks to balance prompt executive response with democratic accountability.

A Necessary Constitutional Device

  • Emergency Response: It enables rapid legal remedies during unforeseen crises when the legislature cannot meet immediately, such as the promulgation of the Epidemic Diseases (Amendment) Ordinance, 2020 during the COVID-19 pandemic.
  • Governance Continuity: It prevents legislative vacuums that could imperil state functioning, public order, or fiscal stability when Parliament is in recess.

A Potential Source of Executive Overreach

  • Bypassing Scrutiny: Over 70 central ordinances were promulgated between 2014 and 2021, often bypassing rigorous parliamentary debate, opposition scrutiny, and Standing Committee review.
  • Manufactured Recesses: The executive can abuse the mechanism by deliberately proroguing or delaying legislative sessions to enact controversial policies without legislative consensus.
  • The Re-promulgation Menace: Using ordinances as de facto permanent fiats circumvents the constitutional requirement of legislative approval, as witnessed when the Enemy Property Ordinance was re-promulgated five times.

Evolution of Judicial Guardrails

  • R.C. Cooper (1970) and the 44th Constitutional Amendment Act: Clarified that Presidential satisfaction is not absolute or immune from review; it is justiciable if exercised with malafide intent or colourable purpose.
  • D.C. Wadhwa v. State of Bihar (1987): Held that routine re-promulgation of ordinances without placing them before the legislature constitutes a fraud on the Constitution.
  • Krishna Kumar Singh v. State of Bihar (2017): Reaffirmed that placing an ordinance before the legislature is a mandatory constitutional requirement, and failure to do so invalidates the measure, making executive lawmaking strictly conditionally justiciable.

Conclusion

While ordinances remain indispensable for unanticipated emergencies, constitutional morality demands that the executive respects parliamentary primacy. Shifts such as zero central ordinances promulgated in 2022 demonstrate the viability of returning to normal legislative deliberation as the standard mode of lawmaking.

Key facts to remember

definition
Ordinance under Article 123

A temporary law promulgated by the President of India on the advice of the Union Cabinet when Parliament is in recess and immediate action is required, having the same force and effect as an Act of Parliament.

case study
Krishna Kumar Singh v. State of Bihar (2017)

A seven-judge Constitution Bench held that the requirement to place an ordinance before the legislature is mandatory, and repeatedly re-promulgating ordinances without legislative approval is an abuse of constitutional power.

case study
D.C. Wadhwa v. State of Bihar (1987)

The Supreme Court examined the practice of the Bihar government issuing hundreds of ordinances repeatedly across decades without enacting legislation, declaring routine re-promulgation a fraud on the Constitution.

statistic

Over 70 central ordinances were promulgated by the Union Executive between 2014 and 2021, before dropping to zero in 2022.

— PRS Legislative Research

Frequently asked questions

Is the President's satisfaction under Article 123 subject to judicial review?

Yes. Following the R.C. Cooper case (1970) and the 44th Constitutional Amendment Act, 1978, the subjective satisfaction of the President can be challenged in court on grounds of bad faith, malafide intent, or non-existence of circumstances warranting immediate action.

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