Article 123 of the Indian Constitution empowers the President to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an act of Parliament, but they are temporary laws that can address unforeseen or urgent matters. The ordinance-making power of the President is subject to the following four limitations:
- Parliament Not in Session: The President can issue an ordinance only when both Houses of Parliament are not in session or when one House is in session but the other is not. An ordinance made when both Houses are in session is void, as laws must be passed by both Houses.
- Satisfaction of Immediate Action: The President can issue an ordinance only if they are satisfied that the circumstances require immediate action. In the Cooper case (1970), the Supreme Court ruled that the President’s satisfaction can be questioned in court on the ground of malafide. Although the 38th Constitutional Amendment Act of 1975 made the President's satisfaction final and beyond judicial review, the 44th Constitutional Amendment Act of 1978 restored judicial review, allowing the President’s satisfaction to be questioned on the ground of malafide.
- Scope of Ordinance-Making Power: The President's ordinance-making power is coextensive with the law-making powers of Parliament, except for duration. This means:
➤ The President can issue an ordinance only on subjects on which Parliament can legislate.
➤ An ordinance is subject to the same constitutional limitations as an act of Parliament and cannot abridge or take away fundamental rights.
- Parliamentary Approval: Every ordinance issued by the President during the recess of Parliament must be laid before both Houses when they reassemble. If the ordinance is approved by both Houses, it becomes an act. If Parliament takes no action, the ordinance ceases to operate six weeks after Parliament reassembles. An ordinance can also cease to operate earlier if both Houses pass resolutions disapproving it.
The President can also withdraw an ordinance at any time. However, the President's ordinance-making power is not a discretionary power; they can only promulgate or withdraw an ordinance on the advice of the council of ministers headed by the Prime Minister.