BharatNotes What is Ordinance (Article 123)?
An ordinance is a temporary law made by the President of India under Article 123 of the Constitution. The President may promulgate an ordinance when one or both Houses of Parliament are not in session and he is satisfied that circumstances exist which render it necessary to take immediate action. An ordinance has the same force and effect as an Act of Parliament, but it is an emergency, stop-gap instrument — not a substitute for ordinary law-making.
The power is exercised by the President on the aid and advice of the Council of Ministers (Article 74), so in practice it is the executive that legislates temporarily while Parliament is in recess. A parallel power for State Governors is found in Article 213.
Key features and limits
| Feature | Provision under Article 123 |
|---|---|
| When usable | Only when at least one House is not in session |
| Trigger | President's satisfaction that immediate action is necessary |
| Force | Same force and effect as an Act of Parliament |
| Scope limit | Cannot make any provision Parliament itself is not competent to enact; such a provision is void |
| Laying requirement | Must be laid before both Houses on their reassembly |
| Expiry | Ceases to operate six weeks from reassembly of Parliament, or earlier if both Houses pass disapproving resolutions |
| Withdrawal | May be withdrawn by the President at any time |
Maximum life: Because the longest permissible gap between two sessions is six months (Article 85), and an ordinance survives six weeks after reassembly, its outer limit is about six months and six weeks. If the two Houses reassemble on different dates, the six weeks are counted from the later date.
Justiciability and the satisfaction clause
The 38th Constitutional Amendment Act, 1975 made the President's satisfaction final and beyond judicial review (a new clause 4 in Articles 123 and 213). The 44th Constitutional Amendment Act, 1978 deleted this clause, restoring judicial review. Courts can therefore examine whether the satisfaction was based on relevant material or was a fraud on the Constitution.
Landmark judgments
- D.C. Wadhwa v. State of Bihar (1986): Bihar had re-promulgated hundreds of ordinances over years (1967–1981) without placing them before the legislature. A Constitution Bench held that re-promulgation is a fraud on the Constitution and a subversion of the democratic legislative process.
- Krishna Kumar Singh v. State of Bihar (2017): A seven-judge Constitution Bench reaffirmed that re-promulgation is unconstitutional, held that laying an ordinance before the legislature is mandatory, and ruled that ordinances do not generally create enduring rights that survive their lapse.
UPSC angle
Treat Article 123 as a high-yield topic linking executive power, the legislative process and judicial review. For Prelims, lock in the numbers — six weeks, ~six months and six weeks, Articles 85, 123 and 213. For Mains GS2, be ready to argue both sides: the ordinance as a legitimate tool for urgent action versus its misuse to bypass legislative scrutiny, citing Wadhwa and Krishna Kumar Singh.
Don't confuse with: Article 213 (Governor's ordinance power, which additionally needs Presidential instructions in certain cases) and the President's Article 356 powers.
