123. Power of President to promulgate Ordinances during recess of Parliament
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance
- The power of promulgating Ordinance is of historical antiquity and it has undergone change from time to time. In the East India Company Act, 1773 under Section 36 the Governor-General could promulgate Ordinance. The Indian Councils Act, 1861 by Section 23 thereof provided that the Governor-General in case of emergency may promulgate an Ordinance for the peace and good government of the territories. The Government of India Act, 1915 provided in Section 72 that the Governor-General could promulgate Ordinances for the peace and good government. The Government of India Act 1935 by Sections 42, 43 and 45 conferred power on the Governor-General to promulagate Ordinances and Sections 88 and 89 conferred a similar power on the Governor. Article 123 of the Constitution is really based on Section 42 of the Government of India Act, 1935 and Article 213 which relates to the power of the Governor in the States is based on Section 88 of the Government of India Act, 1935. 224. It has been held in several decisions like Bhagat Singh’s case, (supra) and Sibnath Banerjee’s case, (supra) that the Governor-General is the sole judge as to whether an emergency exists or not. The Federal Court in Lakhi Narain Singh’s case, (supra) took a similar view that the Governor-General was the sole judge of the state of emergency for promulgating Ordinances.
2. The interpretation of Article 123 is to be made first on the language of the Article and secondly the context in which that power is reposed in the President. When power is conferred on the President to promulgate Ordinances the satisfaction of the President is subjective for these reasons. The power in Article 123 is vested in the President who is the executive head and the circumstances contemplated in Article 123 are a guide to the President for exercise of such power. Parliament is not in session throughout the year and during the gaps between sessions the legislative power of promulgating Ordinance is reposed in the President in cases of urgency and emergency. The President is the sole judge whether he will make the Ordinance. The President under Article 75 (1) of the Constitution acts on the advice of Ministers. Under Article 74 (2) the advice of the Ministers is not to be enquired into by any Court. The Ministers under Article 75 (3) are responsible to Parliament. Under Article 123 the Ordinance are limited in life and the Ordinance must be laid before Parliament and the life of the Ordinance may be further shortened. The President under Article 361 (1) is not answerable to any Court for acts done in the performance of his duties. The Ministers are under oath of secrecy under Article 74 (4). Under Article 75 (3) the Ministers are collectively responsible to the House of the People. Under Article 78 it shall be the duty of the Prime Minister to furnish information to the President. The Power under Article 123 relates to policy and to an emergency when immediate action is considered necessary and if an objective test is applied the satisfaction of the President contemplated in Article 123 will be shorn of the power of the President himself and as the President will be acting on the advice of Ministers it may lead to disclosure of facts which under Article 75 (4) are not to be disclosed. For these reasons it must be held that the satisfaction of the President is subjective.[ Justice Ray – minority view in Rustom Cavasjee Cooper Versus Union of India[ALL SC 1970 FEBRUARY]