Ordinance Making Power of Governor

In the constitutional framework of India, the ordinance making power of the Governor is an important executive authority granted under Article 213 of the Constitution of India. This power enables the Governor to promulgate temporary laws when the State Legislature is not in session, allowing the State Government to respond swiftly to urgent situations. 

However, it is a power that must be exercised with care, as it temporarily bypasses the usual legislative process and raises significant questions about the separation of powers, democracy, and accountability.

Introduction to Ordinance Making Power

An ordinance is a law promulgated by the Governor of a State when the State Legislature is not in session, and urgent legislative action is necessary. It holds the same force and effect as an Act passed by the Legislature but is of a temporary nature. The primary purpose of this provision is to enable the executive to act promptly in unforeseen or emergency circumstances, ensuring the continuous functioning of the government machinery.

The ordinance power acts as a bridge between legislative sessions and is not intended to replace the legislature. It is meant to provide a temporary solution until the legislature convenes and can properly debate and enact the law.

Constitutional Basis: Article 213

The ordinance making power of the Governor is provided under Article 213 of the Constitution. It reads, in essence, that:

• The Governor may promulgate an ordinance when the State Legislature is not in session if he is satisfied that circumstances require immediate action.
• The ordinance has the same force as an Act passed by the Legislature.
• The ordinance must be laid before the Legislature when it reassembles.
• The ordinance ceases to operate if the Legislature disapproves it or after six weeks from the reassembly of the Legislature.

A key aspect of Article 213 is the proviso that the Governor cannot promulgate an ordinance without instructions from the President in certain cases. These include when:

• A Bill containing the same provisions would require the previous sanction of the President for introduction.
• The Bill would have to be reserved for the President’s consideration.
• An Act containing the same provisions would be invalid unless it had received the President’s assent.

These safeguards reflect the federal nature of India’s governance, ensuring that sensitive matters remain under central supervision.

Conditions for Promulgation of Ordinance by the Governor

Before promulgating an ordinance, the Governor must satisfy several conditions:

Legislature Not in Session

The ordinance can be promulgated only when the State Legislature is not sitting. This includes:

• The Legislative Assembly alone in unicameral states.
• Both the Legislative Assembly and Legislative Council in bicameral states.

This condition prevents the Governor from bypassing the legislature while it is in session.

Immediate Necessity

The Governor must be “satisfied” that an urgent situation demands immediate legislative intervention. This satisfaction is subjective but not beyond judicial scrutiny. The courts have held that the Governor’s satisfaction is open to challenge if the urgency is not genuine or the power is being misused.

Presidential Instructions in Certain Cases

As mentioned earlier, the Governor requires the President’s instructions before issuing an ordinance if the subject matter involves special provisions related to the President’s assent or sanction.

Scope and Effect of Ordinances by Governor

An ordinance promulgated under Article 213 carries the same force and effect as a law enacted by the State Legislature. This means:

• It has binding legal authority.
• It can modify, repeal, or amend existing laws.
• It may have retrospective effect, depending on the language used.

However, the ordinance is temporary and subject to the limitations and conditions of the Constitution and the State’s legislative competence.

The ordinance cannot be used to amend the Constitution, nor can it infringe upon fundamental rights. Furthermore, any provision of the ordinance that would be invalid if enacted as a regular law by the Legislature is also void.

Procedure After Promulgation of Ordinances Governor

Once an ordinance is promulgated, the Governor must:

Lay the Ordinance Before the Legislature

The ordinance must be laid before the State Legislature when it reassembles. In bicameral legislatures, it must be laid before both Houses.

Duration and Expiry

The ordinance will cease to operate on the earliest of the following events:

• Six weeks after the reassembly of the Legislature.
• If the Legislature passes a resolution disapproving the ordinance.

If the two Houses reassemble on different dates, the six-week period is counted from the later date.

Withdrawal of Ordinance

The Governor can withdraw the ordinance at any time, but only on the advice of the Council of Ministers headed by the Chief Minister. Withdrawal ends the ordinance’s effect immediately.

Judicial Review and Safeguards Against Misuse

The ordinance power is not absolute. It is subject to judicial review and constitutional safeguards:

• In the landmark case of R.C. Cooper v. Union of India (1970), the Supreme Court held that the Governor’s satisfaction regarding necessity is justiciable, meaning it can be examined by courts.
• In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court criticised the practice of repeatedly repromulgating ordinances to bypass the legislative process, terming it a “fraud on the Constitution.”
• The Court reiterated in Krishna Kumar Singh v. State of Bihar (2017) that re-promulgation without legislative approval violates democratic principles and is unconstitutional.

The courts thus protect the Legislature’s exclusive law-making role and ensure the ordinance is used only as a last resort.

Comparison of Ordinance Making Power of Governor with the Ordinance Making Power of the President

The ordinance making powers of the Governor and the President are similar in many respects, but important differences exist:

This comparison highlights the greater control the Centre exercises over Governor’s ordinances, reflecting the constitutional balance between Centre and States.

Conclusion

The ordinance making power of the Governor under Article 213 is a constitutionally significant authority that balances the need for quick executive action with legislative supremacy. It is an essential tool for governance, especially in emergencies, but it must be exercised with restraint and accountability.

The constitutional safeguards (including the requirement for the Governor’s satisfaction, the necessity of Presidential instructions in certain cases, the mandatory laying before the legislature, and judicial review) ensure that the ordinance power is not misused.