I've been reading the Constitution of India and stumbled upon what seems like a very interesting — and potentially contentious — constitutional question. Would love to hear your thoughts and interpretations.
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The Two Provisions at the Heart of This Question:
Article 123 — Power of the President to Promulgate Ordinances: Under Article 123, the President of India is empowered to promulgate Ordinances at any time when both Houses of Parliament are not in session, provided the President is satisfied that circumstances exist which render it necessary to take immediate action. Such an Ordinance, once promulgated, has the same force and effect as an Act of Parliament. However, every such Ordinance must be laid before both Houses of Parliament when they reassemble, and it ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless disapproved earlier by both Houses.
Article 368 — Power of Parliament to Amend the Constitution: Under Article 368, the power to amend the Constitution vests exclusively in Parliament, and not in any other authority. A Constitutional Amendment Bill must be introduced in either House of Parliament, and must be passed in each House by —
• A majority of the total membership of that House, AND
• A majority of not less than two-thirds of the members of that House present and voting.
Furthermore, certain specified provisions of the Constitution additionally require ratification by the legislatures of not less than one-half of the States before the Bill can be presented to the President for assent.
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My Question:
Given that Article 123 grants the President the power to issue Ordinances that carry the same force and effect as an Act of Parliament, can the President theoretically use this power to amend the Constitution — bypassing the stringent special majority requirements of Article 368?
More specifically:
Since an Ordinance has the same force as a Parliamentary Act, does it logically follow that it could be used to bring about a constitutional amendment — at least temporarily?
Or does Article 368 act as a specific and overriding provision (special law overrides general law — Generalia Specialibus Non Derogant), meaning the President's ordinance-making power under Article 123 cannot extend to constitutional amendments, which have their own exclusive and exhaustive procedure?
Would such an Ordinance, even if issued, be constitutionally void ab initio, as it would seek to circumvent the democratic safeguard of a special majority that Article 368 specifically mandates?
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Why This Matters:
The tension here is between the breadth of Article 123 (same force as an Act of Parliament) and the exclusivity of Article 368 (a dedicated, high-threshold procedure for constitutional amendments). If Ordinances could amend the Constitution, the special majority requirement of Article 368 — arguably one of the most important safeguards of constitutional democracy — could be rendered meaningless during parliamentary recess.
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Would love to hear from law students, legal professionals, and constitutional enthusiasts. Are there any judicial precedents or constitutional debates (from the Constituent Assembly Debates) that have addressed this question?
Used AI for framing the text.