Article 213 of the Constitution of India

The Constitution of India provides a unique system of governance that balances the powers of the executive, legislature, and judiciary. One of the significant powers granted to the executive is the ability to promulgate ordinances during the legislative recess. 

This power is enshrined in Article 213 of the Constitution, which grants the Governor of a state the authority to promulgate ordinances when the state legislature is not in session. The ability to make laws through ordinances was included in the Constitution to address urgent issues that cannot wait for the legislative process.

Understanding the Text of Article 213

Article 213 of the Constitution of India states:

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.

Proviso: The Governor shall not, without instructions from the President, promulgate any such ordinance if—

• (a) A Bill containing the same provisions would, under this Constitution, have required the previous sanction of the President for the introduction thereof into the Legislature;
• (b) He would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
• (c) An Act of the Legislature of the State containing the same provisions would, under this Constitution, have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.

2. An Ordinance promulgated under this article shall have the same force and effect as an Act of 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 the 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• (b) May be withdrawn at any time by the Governor.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.

3. If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void. Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.

Key Features of Article 213

Power of Promulgation During Legislative Recess

Article 213 grants the Governor the authority to promulgate ordinances when the State Legislature is not in session. This is intended to address situations where urgent action is required but the legislature is unavailable to pass a law. The power is meant to be exercised in extraordinary circumstances where there is a necessity to take immediate legislative action in the public interest.

The Governor’s Satisfaction

The power to promulgate an ordinance is triggered when the Governor is “satisfied that circumstances exist which render it necessary to take immediate action.” This is a subjective test, and the Governor’s satisfaction can be challenged in court. However, it is generally accepted that the Governor’s discretion is not absolute and is subject to constitutional checks.

Ordinance with the Force of Law

Once promulgated, an ordinance has the same force and effect as an Act passed by the State Legislature, provided it is assented to by the Governor. This means that ordinances have full legal standing, allowing the executive to act swiftly without the usual process of parliamentary debate.

Legislative Oversight

An ordinance must be laid before the State Legislature when it reconvenes. It will automatically cease to operate six weeks after the reassembly of the Legislature unless it is approved within that period. If the Legislature disapproves the ordinance, it is no longer valid. This ensures that ordinances are not used to bypass the legislative process for prolonged periods.

Presidential Instructions

The Governor cannot issue an ordinance on certain matters without the prior instructions of the President. These include situations where a Bill containing similar provisions would require the President’s prior sanction or would be reserved for the President’s consideration. This proviso ensures that ordinances do not conflict with central legislative authority and that matters of national importance are subject to federal oversight.

Withdrawal of Ordinance

The Governor has the power to withdraw an ordinance at any time before the Legislature disapproves it. This provides flexibility and ensures that ordinances do not remain in force unnecessarily.

Void Provisions

If an ordinance contains provisions that would be invalid if enacted as an Act of the Legislature, it is considered void. This ensures that ordinances do not infringe upon the constitutional limits imposed on state legislation.

The Role of Ordinances in a Federal Structure

India follows a federal structure, and Article 213 acknowledges the need for both the executive and legislative branches to operate independently while maintaining checks and balances. The power of promulgating ordinances is a unique feature of the Indian Constitution that allows the executive to address urgent matters without waiting for the legislature to reconvene. However, this power is not absolute and is subject to the condition that the legislature must approve the ordinance when it reconvenes.

Judicial Interpretation of Article 213

The judiciary has played a significant role in interpreting Article 213, especially concerning the limits of the Governor’s powers and the circumstances under which ordinances can be issued. Some landmark cases that provide insight into the judicial interpretation of this article are:

A.K. Roy v. Union of India (1982)

In A.K. Roy v. Union of India case, the Supreme Court held that the power to promulgate ordinances is subject to judicial review. The court emphasised that the Governor’s satisfaction regarding the necessity of an ordinance must be based on genuine urgency and not on political considerations. The case reinforced the principle that the executive cannot exercise its ordinance power arbitrarily.

D.C. Wadhwa v. State of Bihar (1987)

D.C. Wadhwa v. State of Bihar case addressed the issue of the re-promulgation of ordinances. The court held that the re-promulgation of the same ordinance without legislative approval was unconstitutional. The court observed that the repeated issuance of ordinances without legislative approval undermines the legislative process and violates the democratic principles of governance.

Krishna Kumar Singh v. State of Bihar (1996)

The Supreme Court in Krishna Kumar Singh v. State of Bihar ruled that ordinances should not be issued to circumvent the legislative process, and they should only be used in genuine emergencies. The court emphasised that the Governor’s discretion should be exercised carefully and in accordance with the constitutional provisions.

T. Venkata Reddy v. State of Andhra Pradesh (1982)

The Supreme Court in T. Venkata Reddy v. State of Andhra Pradesh case clarified that ordinance-making is an extraordinary power and should not be exercised in a routine manner. The court held that the power to promulgate ordinances should be used sparingly and only in cases of urgent necessity.

These cases demonstrate that while Article 213 grants significant power to the executive, this power is subject to judicial scrutiny to ensure that it is not misused.

Practical Applications of Ordinance Power

Ordinance-making powers have been used in various instances across India to address pressing issues when the legislature is not in session. Some of the notable practical applications include:

Emergency Measures

During times of emergency or public unrest, ordinances have been issued to maintain law and order. For instance, ordinances related to anti-terrorism laws, curbing smuggling, and regulating public protests have been issued during critical times.

Economic Reforms

In some instances, ordinances have been used to implement urgent economic reforms. This includes the introduction of fiscal measures or changes in tax policy during times of economic crisis.

Public Health

During public health emergencies, such as the outbreak of epidemics, ordinances have been issued to enable the state to take swift action. These ordinances help streamline decision-making and facilitate the implementation of health policies.

Criticisms and Challenges of Ordinance-making Power

Despite its utility, the ordinance-making power has faced criticism and challenges:

Bypassing the Legislative Process

One of the main criticisms is that the executive, by relying on ordinances, bypasses the legislative process. This reduces the opportunity for debate, scrutiny, and public participation in law-making, which are fundamental aspects of democratic governance.

Frequent Re-promulgation

Frequent re-promulgation of the same ordinances has been a subject of criticism, as it undermines the constitutional mandate for the legislature to approve laws. Repeated re-promulgation without legislative approval has been seen as an abuse of power.

Subjectivity of Governor’s Satisfaction

The requirement that the Governor must be satisfied that immediate action is needed is a subjective test. Critics argue that this gives too much discretion to the executive, which could be misused for political reasons.

Conclusion

Article 213 of the Constitution of India provides the Governor with the power to promulgate ordinances during legislative recess. While this power is intended to address urgent situations where immediate legislative action is needed, it is subject to several safeguards to prevent abuse. 

The power to issue ordinances must be exercised judiciously, and the legislature must approve the ordinances when it reconvenes. The judicial interpretations of Article 213 have reinforced the need for constitutional checks and balances in the exercise of this power.