Article 213 of the Indian Constitution: The Governor's Ordinance-Making Power

The Governor's Ordinance-Making Power under Article 213 of the Indian Constitution: A Critical Analysis

Introduction

Article 213 of the Constitution of India confers upon the Governor of a State the power to promulgate Ordinances during the recess of the State Legislature. This power, legislative in nature, is intended to be an extraordinary measure to address emergent situations requiring immediate action when the Legislature is not in session. However, the exercise of this power has been a subject of significant constitutional debate and judicial scrutiny, particularly concerning its potential misuse to bypass normal legislative processes. This article critically examines the scope, limitations, and judicial interpretation of Article 213, drawing extensively upon landmark judgments and constitutional principles prevalent in India.

Constitutional Framework of Article 213

Article 213 provides a specific mechanism for the executive to exercise legislative power under circumscribed conditions. The text of Article 213, as quoted in D.C. Wadhwa Dr And Others v. State Of Bihar And Others (Supreme Court Of India, 1986) (Ref 10), lays down the foundational elements of this power.

“213. (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require:
(2) An ordinance promulgated under this article shall have the same force and effect as an Act of the legislature of the State assented to by the Governor, but every such ordinance—
(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall 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, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by Council; and
(b) may be withdrawn at any time by the Governor.
Explanation.—Where the Houses of the legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.”

The Power to Promulgate Ordinances

The Governor's power to promulgate Ordinances is co-extensive with the legislative power of the State Legislature. This means an Ordinance can only be on subjects on which the State Legislature is competent to make laws. The power is vested in the Governor to take "immediate action" when circumstances necessitate it and the legislature is not in session (D.C. Wadhwa Dr And Others v. State Of Bihar And Others, 1986 (Ref 10); Krishna Kumar Singh And Another v. State Of Bihar And Others, 2017 (Ref 11)).

Conditions and Limitations

The exercise of power under Article 213 is subject to several conditions:

  • The Legislature (Assembly or both Houses, if applicable) must not be in session.
  • The Governor must be "satisfied" that circumstances exist which render it necessary for him to take immediate action. This satisfaction, while traditionally viewed with a degree of deference, is not entirely beyond judicial review, especially in cases of repeated repromulgation (D.C. Wadhwa Dr And Others v. State Of Bihar And Others, 1986 (Ref 1, 19); Krishna Kumar Singh And Another v. State Of Bihar And Others, 2017 (Ref 2, 15)).
  • The Ordinance must be such as the circumstances "appear to him to require."

As noted in Shri Sanjeet Shukla Petitioner v. State Of Maharashtra And Others (Bombay High Court, 2014) (Ref 17), the promulgation of an Ordinance is permissible only to deal with an emergent situation.

Force, Effect, and Duration

Clause (2) of Article 213 explicitly states that an Ordinance "shall have the same force and effect as an Act of the legislature of the State assented to by the Governor." This has been consistently affirmed by the judiciary (T. Venkata Reddy And Others v. State Of Andhra Pradesh, 1985 (Ref 3, 12); Kodur Service Co-Operative Bank Ltd. v. State Of Kerala, 2021 (Ref 20), citing R.K. Garg v. Union of India and A.K. Roy v. Union of India).

However, an Ordinance is inherently temporary. It ceases to operate:

  • At the expiration of six weeks from the reassembly of the legislature.
  • If, before this period, a resolution disapproving it is passed by the Legislative Assembly (and agreed to by the Legislative Council, if any).
  • If it is withdrawn by the Governor at any time under Article 213(2)(b). (See Prabodh Verma And Others v. State Of Uttar Pradesh And Others, 1984 (Ref 18) for an instance of withdrawal of an ordinance).

The Supreme Court in PRAKASH VISHWANATH ASHTE v. THE STATE OF MAHARASHTRA AND OTHERS (Bombay High Court, 2019) (Ref 14), quoting Krishna Kumar Singh, clarified that the expression "cease to operate" does not mean the ordinance is rendered void ab initio. An ordinance is void only if it makes a provision which the legislature would not be competent to enact.

The Imperative of Legislative Scrutiny

A crucial constitutional safeguard is the requirement under Article 213(2)(a) that every Ordinance "shall be laid before the Legislative Assembly... or... before both the Houses." The Supreme Court in Krishna Kumar Singh And Another v. State Of Bihar And Others (2017) (Ref 2, 11, 15), and as summarized in MENASSERI RAVUNNIKUTTY NAIR v. THE REVENUE DIVISIONAL OFFICER (Kerala High Court, 2022) (Ref 13), emphasized that:

"The requirement of laying an Ordinance before Parliament or the State Legislature is a mandatory constitutional obligation cast upon the Government. Laying of the Ordinance before the legislature is mandatory because the legislature has to determine: (a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the Ordinance should be enacted (with or without amendments)." (Ref 13, quoting Krishna Kumar Singh)

Failure to comply with this requirement is deemed a "serious constitutional infraction and abuse of the constitutional process" (Ref 13). This underscores that the ordinance-making power is not a parallel source of law-making but is subject to legislative control (Krishna Kumar Singh And Another v. State Of Bihar And Others, 2017 (Ref 2, 11, 15); MENASSERI RAVUNNIKUTTY NAIR v. THE REVENUE DIVISIONAL OFFICER, 2022 (Ref 13)).

Judicial Scrutiny of Ordinance-Making Power

The Nature of Ordinance Power: A Legislative Function

The Supreme Court in T. Venkata Reddy And Others v. State Of Andhra Pradesh (1985) (Ref 3, 12) unequivocally held that the Ordinance-making power under Article 213 is a legislative power, not an executive one. The Court stated, "Ordinances issued under Article 213 are legislative acts equivalent in force to laws passed by the State Legislature." This means an Ordinance must be upheld unless it contravenes constitutional provisions, similar to any other legislative enactment. This perspective was echoed in cases like Rajesh Kumar v. State Of Haryana (Punjab & Haryana High Court, 1998) (Ref 16), where ordinances were promulgated to amend excise laws.

The Governor's "Satisfaction": Evolving Judicial Standards

Historically, the Governor's satisfaction regarding the necessity for immediate action was considered largely non-justiciable. In T. Venkata Reddy (Ref 3), the Court affirmed that "Courts cannot assess the Governor's motives or the necessity behind promulgating an Ordinance; they can only evaluate its constitutional validity." This view was also expressed in K.N. Joshi v. The State Of Rajasthan (Rajasthan High Court, 1972) (Ref 21), citing Lakhi Narayan Das v. Province of Bihar.

However, the Supreme Court's stance has evolved, particularly in the context of abuse of power. While the initial satisfaction might not be deeply probed, the repeated repromulgation of ordinances without legislative approval has been held to be subject to judicial review. The Court in D.C. Wadhwa (Ref 1, 19) and later, more emphatically, in Krishna Kumar Singh (Ref 2, 15), asserted its power to examine whether the repromulgation constitutes a fraud on the Constitution or an abuse of power.

The Pathology of Repromulgation: A "Fraud on the Constitution"

The most contentious aspect of Article 213 has been the practice of repromulgating ordinances, thereby keeping them alive indefinitely without legislative enactment. This practice, often termed "Ordinance-Raj" (Krishna Kumar Singh And Another v. State Of Bihar And Others, 2017 (Ref 2, 15)), has been severely condemned by the Supreme Court.

D.C. Wadhwa v. State of Bihar: The Seminal Indictment

The landmark judgment in D.C. Wadhwa Dr And Others v. State Of Bihar And Others (1986) (Ref 1, 19) addressed the systemic practice in Bihar of repromulgating ordinances on a massive scale. The Court, led by Chief Justice P.N. Bhagwati, held that:

  • Ordinances are intended for exceptional circumstances and are inherently temporary.
  • Repromulgation without legislative approval violates constitutional principles and undermines democratic governance.
  • The executive cannot usurp the legislative power vested in the state legislature by perpetuating ordinances.

The Court declared this practice unconstitutional, emphasizing that "the power conferred on the Governor to issue ordinances is in the nature of an emergency power" and not a substitute for the law-making power of the legislature (Ref 10, 19).

Krishna Kumar Singh v. State of Bihar: Reaffirmation and Ramifications

Decades later, the Supreme Court in Krishna Kumar Singh And Another v. State Of Bihar And Others (2017) (Ref 2, 11, 15) revisited the issue of repromulgation, specifically concerning ordinances in Bihar promulgated between 1989 and 1992. The Court, in a majority judgment authored by Justice D.Y. Chandrachud, reaffirmed the principles laid down in D.C. Wadhwa and further elaborated:

  • Successive repromulgation of ordinances without placing them before the legislature constitutes a "fraud on the Constitution."
  • The executive's ordinance-making power is not a parallel legislative authority.
  • The failure to lay an ordinance before the legislature is a serious constitutional infraction.
  • Repromulgation subverts democratic legislative processes and is antithetical to constitutionalism.

The Court noted, "The rationale for the conferment of a power to promulgate Ordinances upon the President and the Governors is that the law, particularly a compact of governance, would not accept a state of constitutional vacuum... Such a deviation is permitted by the Constitution to enable the President and Governors to enact Ordinances which have the force and effect of law simply because of the existence of circumstances which can brook no delay..." (Ref 11). However, this power cannot be used to bypass the legislature.

The Doctrine of Colourable Legislation

The practice of repromulgation has also been viewed through the lens of "colourable legislation." As highlighted in the analysis of D.C. Wadhwa (Ref 1), colourable legislation involves enacting laws or policies through indirect means that disguise an unconstitutional motive. Repromulgating ordinances without legislative approval was deemed a colourable attempt by the executive to assume legislative functions unlawfully. This principle was also discussed in precedents like K.C. Gajapati Narayan Deo v. State of Orissa (1954) and P. Vajravelu Mudaliar v. Special Deputy Collector, Madras (1965), cited in D.C. Wadhwa (Ref 1).

Consequences of Lapsed or Unconstitutional Ordinances

The judgment in Krishna Kumar Singh (Ref 2, 15) also delved into the consequences of ordinances that are not laid before the legislature and are allowed to lapse, or are repromulgated unconstitutionally. The Court held that actions taken under such ordinances could be invalidated. It refuted the "enduring rights" theory that had been suggested in earlier cases like Bhupendra Kumar Bose v. State of Orissa (1962) (cited in Krishna Kumar Singh, Ref 2) and T. Venkata Reddy (Ref 3), at least in the context of unconstitutionally repromulgated ordinances that were never placed before the legislature.

However, in T. Venkata Reddy (Ref 3), concerning an ordinance that abolished posts, the Court had held that the abolition was an accomplished fact and not subject to revival merely by the lapse of the ordinance, unless explicitly reversed by subsequent legislation. The distinction appears to lie in the nature of the rights created or affected and the constitutionality of the ordinance's promulgation and handling.

The Orissa High Court in Bhupendra Kumar Bose v. State Of Orissa And Others (1959) (Ref 4) dealt with an ordinance validating electoral rolls and held certain sections of it invalid for violating Article 14, indicating that even if an ordinance is promulgated, its provisions are subject to constitutional scrutiny.

Article 213, Separation of Powers, and Legislative Supremacy

The power under Article 213, while necessary, poses inherent tensions with the doctrine of separation of powers, a foundational feature of the Indian Constitution, as noted in Smt. Ujjam Bai v. State Of Uttar Pradesh (Supreme Court Of India, 1961) (Ref 7). The primary law-making authority under the Constitution is the legislature (D.C. Wadhwa, Ref 10).

The Supreme Court in D.C. Wadhwa (Ref 1, 19) and Krishna Kumar Singh (Ref 2, 15) strongly emphasized that the executive cannot, through the device of repromulgation, encroach upon the legislative domain. Doing so undermines democratic governance and the supremacy of the legislature. The judiciary's role in striking down such practices reinforces its function as a guardian of constitutional propriety and the balance of powers. The principle that legislation cannot be struck down solely for encroaching on judicial functions if the legislature is otherwise competent, as mentioned in Bhupendra Kumar Bose (Ref 4), refers to legislative acts, and ordinances, being legislative in nature, would generally fall under this unless they specifically target judicial decisions in an impermissible manner.

Conclusion: Upholding Constitutional Governance

Article 213 of the Constitution of India represents a critical, albeit exceptional, legislative power vested in the executive. While its utility in addressing urgent situations is undeniable, its exercise demands strict adherence to constitutional limitations and democratic principles. The landmark judgments in D.C. Wadhwa Dr And Others v. State Of Bihar And Others and Krishna Kumar Singh And Another v. State Of Bihar And Others have been pivotal in curbing the misuse of this power, particularly the practice of "Ordinance-Raj" through repeated repromulgations.

The judiciary has consistently underscored that the ordinance-making power is not a parallel or alternative source of law-making but is subservient to the primary legislative authority of the elected legislature. The mandatory requirement of laying ordinances before the legislature and their limited lifespan are crucial safeguards against executive overreach. By delineating clear boundaries and condemning the subversion of legislative processes, the Supreme Court has reinforced the tenets of constitutionalism, separation of powers, and the rule of law in the Indian democratic framework. The vigilant oversight by the judiciary remains essential to ensure that this extraordinary power is exercised responsibly and only for the purposes envisioned by the Constitution.