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Difficulty: Very hardUnion Executive: President, Vice-President, PM, and Council of Ministers

With reference to the constitutional provisions governing the ordinance-making power of the Union Executive under Article 123 of the Constitution of India, which of the following statements correctly describes the legal boundary and procedural scope of the President's power?

  1. The President can promulgate an ordinance when both Houses of Parliament are not in session, or when only one House is in session, provided the President is satisfied that circumstances render immediate action necessary.Answer
  2. B
    The President possesses independent constitutional discretion to promulgate an ordinance without the aid and advice of the Council of Ministers during a period when the Lok Sabha is dissolved.
  3. C
    An ordinance promulgated by the President automatically lapses six months after its date of promulgation, irrespective of when Parliament reassembles under Article 85.
  4. D
    Unlike the Governor's power under Article 213, the subjective satisfaction of the President under Article 123 to issue an ordinance is completely immune from judicial review under any circumstance.

Answer

The President can promulgate an ordinance when both Houses of Parliament are not in session, or when only one House is in session, provided the President is satisfied that circumstances render immediate action necessary.
Under Article 123 of the Constitution of India, the President can issue an ordinance when either both Houses of Parliament are not in session, or when only one House is in session. Because a law requires the concurrence of both Houses to be enacted, the non-session of even a single House renders parliamentary lawmaking impossible, justifying emergency executive legislation if immediate action is required.

Step-by-Step Solution

1
Analyze the parliamentary session condition under Article 123 of the Constitution.
Since legislation requires approval from both the Lok Sabha and the Rajya Sabha, if even one House is not in session, ordinary legislation cannot be passed, thereby satisfying the condition for issuing an ordinance.
Article 123(1) explicitly states that an ordinance can be promulgated except when both Houses of Parliament are in session.
2
Evaluate the requirement of Executive Aid and Advice.
The exercise of ordinance-making power is not a discretionary power of the President.
Under Article 74(1), the President acts on the binding aid and advice of the Union Council of Ministers headed by the Prime Minister (as affirmed in Samsher Singh v. State of Punjab).
3
Examine the lifespan and expiry timeline of a presidential ordinance.
An ordinance must be laid before both Houses of Parliament and ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless disapproved earlier.
Article 123(2)(a) mandates six weeks from the reassembly of Parliament as the constitutional expiration deadline, not six months from promulgation.
4
Assess the judicial reviewability of the President's subjective satisfaction under Article 123.
The satisfaction of the President is open to judicial scrutiny if it is shown to be a colorable exercise of power or fraudulent.
The 44th Constitutional Amendment Act, 1978 deleted Clause (4) of Article 123 (inserted by 38th Amendment), restoring judicial review as confirmed in RC Cooper (1970) and Krishna Kumar Singh (2017).

Key Concept

Ordinance-making power of the Union Executive (Article 123)
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Topics

Union Executive: President, Vice-President, PM, and Council of Ministers

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