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Power Of President To Issue Ordinance under Article 123

Law making function is generally within the domain of the Legislature, but in certain circumstances, the Constitution has empowered the President and the Governor to make law. Parliament does not sit continuously. When Parliament is not in session, circumstances can emerge when there is requirement of passing of law. 

Article 123 empowers the President to promulgate ordinance if circumstances require when Parliament is not in session. Thus, the President can only issue ordinance when Parliament is not in session. The President issues ordinance on aid and advise of the Council of Ministers.

The Ordinance issued by Parliament has the same force and effect as an Act of Parliament. Every such ordinance has to be placed before Parliament within six weeks of reassembly of Parliament. Where the houses of Parliament have been summoned to reassemble on different dates, the period of six weeks will be reckoned from the later of those dates.

 If such ordinance is not placed before the Parliament within six weeks of reassembly, it will cease to operate. If ordinance is placed before the Parliament within six weeks and the Parliament approves the ordinance, it will take form of an Act but if Parliament disapproves, the ordinance will cease to operate.

The President can withdraw the ordinance any time after its promulgation.

The President can only make such provision under an ordinance which Parliament is competent to enact. If the President has made provisions through ordinance which Parliament is not competent to make such Ordinance will be void. In normal circumstances, Parliament is competent to make law on the subjects enumerated in the Union List and Concurrent List.  During emergency the Parliament can make laws on subjects enumerated in the Sate List also.  As such, the President can make law through ordinance on subjects enumerated in the  State List during Proclamation of emergency.

Can judicial review of an ordinance be done ?

In A. K. Roy Vs. Union of India (1982) 1 SCC 271 the Supreme Court has held that Judicial review of ordinance issued under Article 123 has not been excluded. It is pertinent to mention that Parliament by 38th Amendment has introduced clause (4) in Article 123 whereby it has been provided that satisfaction of the President in clause (1) shall be final and conclusive and shall not   be questioned in any court on any ground. This addition was omitted vide 44th Amendment.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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