123.Power of the president to promulgate ordinances during recess of the Parliament:

(1) if any time ,except when both the houses of the parliament are in session, the President is satisfied that the circumstances exist which render it necessary for him to take immediate action , he may promulgate such Ordinance promulgated under this Article shall have the same force and effects as an Act of the Parliament, but every such Ordinance ---(a) shall be laid before both the Houses of the Parliament and shall cease to operate at the expiration of six weeks from the reassembly of the Parliament, or ,if before the expiration of that period, resolution disapproving it are passed by both the House, upon the passing of the second of those resolution ; and (b) may be withdrawn at any time by the President.

Explanation:

Where the House of the Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the latter of those dates for the purpose of this clause.(3) if and so far as an Ordinance under this Article makes any provision, which the parliament would not under this Constitution be competent to enact, it shall be void.

COMMENTS

Article 123 confers powers on the Powers on the President to promulgate a law by issuing an Ordinance to enable the executive to deal with the emergent situation, which might well include a situation created by a law being declared void by a court of law. The President has the legislative power under Article 123 to promulgate an Ordinance and his legislative power is coextensive with the power of the Parliament to make Laws. If the parliament can by enacting legislation alter or amend tax laws, equally can the President do so by issuing an ordinance under Article 123. There have been, in fact, numerous instances where the President has issued an Ordinance replacing with retrospective effect a tax law declared void by the high court or the Supreme Court , In R.K Garg VS .Union of India (9), the constitutional validity of the special Bear Bonds Ordinance, 1980 was upheld .prior to that , in A.K.Roy vs. Union of India, the validity of the National Security Ordinance , 1980 which dealt with preventing detention was upheld.

In D.C Wadhwa vs. State of Bihar, the repeated promulgation of the same Ordinance (s)was held a fraud on the Constitution. In this case, the writ petitions were field by four petitioners challenging the practice of the State of Bihar in promulgating and repromulgating. Ordinance on a massive scale and in particular, they challenged the constitutional validity of three different Ordinances issued by the Governor of Bihar, namely (i) Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 (ii) The Bihar Intermediate Education Council Third Ordinance,1983 . The Court held as under:

“The power conferred on the Governor to issue ordinances is in the nature of an Emergency power which is vested I the Governor for taking immediate action where such action may become necessary at a time when the legislative is not in session. The primary law-making authority under the Constitution is the legislature and not the executive but it is possible that when the legislature and not the executive but it is that when the legislature is not in session circumstances may arise, which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordinances. But every ordinance promulgated by the Governor must be placed before the legislature and it would cease to operate at the expiration of six weeks from the reassembly of the legislature or, if before the expiration of that period, a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any. The object of this provision is that since the power conferred on the Governor to issue ordinances is an emergent power exercisable when the legislature is not in session, an ordinance promulgated by the Governor to deal with a situation, which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life.

… The law-making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the legislature, it would be nothing short of usurpation by the executive cannot by taking resort to an Emergency power exercisable by it only when the legislature is not in session take over the law-making function of the legislature that would be clearly subverting the democratic process which lies at the core of our Constitutional scheme, for then the people would be governed not by the laws made by the executive. The Government cannot by pass the legislature and without enacting the provisions of the ordinance into an Act of the legislature is prorogued. Of course, there may be situation where it may not be possible for the government to introduce and push through in the legislature a Bill containing the same provisions as in the ordinance, because the legislature may have too much legislative business in a particular session or the time at the disposal of the legislature in a particular session may be short, and in that event, the Governor may legitimately find that is necessary to repromulgate the ordinance. Where such is the case, repromulgation of the ordinance may not be open to attack. But, otherwise, it would be a colourable exercise of power on the part of the executive to continue an ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromilgation.it is settled, law that a Constitutional authority cannot do indirectly what it is not permitted to do directly. if there is a Constitutional provision inhibiting the constitutional authority from doing an act , such provision cannot be allowed to be defeated by adoption of any subterfuge .That would be clearly a fraud on the constitution provision.

The court also held that it is significance to note that so far as the president of Indian is concerned, though he has the same power of issuing an ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the president has , since 1950 till today, repromulgated any ordinance after its expiry.

Promulgation and repromulgation of Ordinances by the president:

The Narasimha Rao Government from year 1991-1996 had promulgated an average of 21 ordinances per year and the following Ordinance were promulgated after summoning of both the House.

1. The payment of Bonus (Amendment) Ordinance, 1995 (8 of 1995)

2. The Union Duties of Excise (goods of special importance) Amendment Ordinance, 1995 (9 of 1995)

3. The additional Duties of Excise (Goods of Special Importance) Amendment Ordinance, 1995 (10 of 1995)

4. The Constitution (Scheduled Tribes) Order (Amendment) Third Ordinance 1996 (30 of 1996)

5. The Income-tax (Amendment) Ordinance, 1996 (31 of 1996)

In the 16th Lok Sabha, a number of Ordinances were promulgated, including the amendment of the Telecom Regulatory Authority of India Act, 1997 and the amendment of the new Land Acquisition At, 2013.