Article 123 is a constitutional provision that grants the President of India the power to promulgate Ordinances. This power is a temporary legislative authority for the executive, intended for use when Parliament is not in session. The concept is modeled on Section 42 of the Government of India Act, 1935, and was debated as Draft Article 102 on May 23, 1949, to ensure the continuity of governance by allowing for immediate legislative intervention during a recess.
The mechanism of Article 123 allows the President to issue an Ordinance if they are satisfied that circumstances exist requiring immediate action, provided that both Houses of Parliament, or either House, are not in session. An Ordinance has the same force and effect as an Act of Parliament. However, it is a temporary measure and must be laid before both Houses of Parliament when they reassemble. The Ordinance automatically ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless both Houses pass a resolution disapproving it earlier. The President can also withdraw the Ordinance at any time.
This power is not discretionary, as the President acts on the advice of the Council of Ministers. It is co-extensive with Parliament's power to make laws, meaning the President cannot issue an Ordinance on a subject Parliament is not competent to legislate on. A related concept is Article 213, which grants a similar Ordinance-making power to the Governor of a State. The Supreme Court has affirmed that the President's satisfaction under Article 123 is subject to judicial review, as established in cases like R.C. Cooper vs. Union of India (1970). Furthermore, in a significant ruling, a seven-judge Constitution Bench held in 2017 that the re-promulgation of Ordinances is a "fraud on the Constitution" and a subversion of the democratic legislative process.