Article 123 of the Costitution of India with Case law
🇮🇳 Article 123 of the Constitution of India
Topic: Power of the President to Promulgate Ordinances during Recess of Parliament
🔹 Bare Text of Article 123:
(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—
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 disapproved earlier by either House.
(3) The President may withdraw an Ordinance at any time.
🧾 Purpose and Scope:
Article 123 empowers the President (on the advice of the Council of Ministers) to issue laws in the form of ordinances when Parliament is not in session.
Ordinances are temporary laws and must be approved by Parliament to become permanent.
Meant for emergency situations requiring immediate legislative action.
⚖️ Important Case Laws on Article 123:
🧑⚖️ 1. R.C. Cooper v. Union of India (1970) – Bank Nationalization Case
The Supreme Court held that judicial review applies to ordinances.
The President's satisfaction can be challenged in a court of law.
The ordinance power cannot be used arbitrarily.
🧑⚖️ 2. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579
Land reforms ordinances were repeatedly re-promulgated in Bihar without bringing them before the legislature.
The Supreme Court held:
Re-promulgation of ordinances without placing them before the legislature is unconstitutional.
This practice was seen as a fraud on the Constitution.
A landmark judgment limiting misuse of ordinance-making powers.
🧑⚖️ 3. Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
7-judge Constitution Bench ruling.
Held that:
Ordinances are subject to judicial review.
Re-promulgation of ordinances is unconstitutional unless exceptional circumstances are shown.
Ordinances which lapse without being passed do not create enduring rights or obligations unless validated by the legislature.
🧑⚖️ 4. A.K. Roy v. Union of India (1982)
Challenged the National Security Ordinance.
The Court upheld the ordinance but reiterated that the ordinance-making power is not beyond judicial review, especially if fundamental rights are affected.
🏛️ Key Characteristics of Article 123 Ordinance:
| Feature | Detail |
|---|---|
| Issued by | President of India |
| On whose advice? | Council of Ministers |
| When? | Only when Parliament is not in session |
| Duration | Expires after 6 weeks of reassembly of Parliament unless passed |
| Status | Has the same force as a law until it lapses or is disapproved |
| Judicial Review | Yes – courts can review the validity of the ordinance |
| Re-promulgation | Generally unconstitutional unless under rare circumstances |
📌 Conclusion:
Article 123 is a powerful but limited tool meant for urgent situations.
Checks by the Judiciary have ensured it is not misused.
Ordinances must be placed before Parliament and cannot be re-promulgated indefinitely.
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