Article 213

Article 213 of the Constitution of India empowers the Governor of a State to promulgate Ordinances when the State Legislature is not in session. This power serves as an emergency legislative mechanism to ensure that urgent administrative or legal requirements are addressed without interruption to governance. The Article parallels Article 123, which grants similar powers to the President at the Union level.

Constitutional Context and Purpose

The Ordinance-making power under Article 213 was introduced to maintain continuity in governance and to handle situations that demand immediate legal intervention, where waiting for the State Legislature to reconvene could result in administrative paralysis or public inconvenience.
However, the power is temporary and exceptional in nature—it is intended to be used sparingly and not as a substitute for the normal legislative process. The Governor exercises this power as a delegate of the Legislature, not as an independent law-making authority.

Conditions for the Promulgation of an Ordinance

The Governor’s power to issue an Ordinance is subject to specific constitutional conditions and limitations:

1. Legislative Recess:
   • The Governor can promulgate an Ordinance only when the Legislative Assembly is not in session.
   • In states with a bicameral legislature, both the Legislative Assembly and Legislative Council must not be in session.
2. Existence of Urgency:
   • The Governor must be satisfied that circumstances exist which make it necessary to take immediate action.
   • This satisfaction is justiciable to a limited extent—courts may examine whether the satisfaction was genuine or arbitrary, as clarified in later judicial pronouncements.
3. Restrictions Requiring the President’s Instruction:The Governor cannot promulgate an Ordinance without the President’s instructions in the following situations:
   • If a Bill containing similar provisions would require the President’s prior sanction under the Constitution.
   • If such a Bill would have to be reserved for the President’s consideration under Article 200.
   • If an Act containing similar provisions would be invalid without the President’s assent.

These restrictions ensure that the Governor’s Ordinance-making power remains subordinate to constitutional safeguards and federal principles.

Effect and Operation of an Ordinance

Once promulgated, an Ordinance has the same force and effect as an Act passed by the State Legislature. However, its operation is temporary and subject to legislative review:

• The Ordinance must be laid before the Legislative Assembly (and the Legislative Council, if applicable) when it reassembles.
• It remains in force for a maximum of six weeks from the date of reassembly unless it is disapproved earlier by a resolution of the Legislature.
• If the two Houses reassemble on different dates, the six-week period is calculated from the later date.
• The Governor may withdraw the Ordinance at any time before its expiry.

Thus, an Ordinance acts as a temporary law pending the approval or replacement by a regular legislative enactment.

Validity and Constitutional Limitations

The Governor’s Ordinance-making power is subject to the same constitutional limitations as the legislative powers of the State Legislature. Hence:

• An Ordinance cannot contravene fundamental rights, the distribution of legislative powers, or other constitutional provisions.
• If an Ordinance includes provisions that would be ultra vires (beyond the legislative competence of the State Legislature), those provisions are void.

Furthermore, re-promulgation of Ordinances without legislative approval has been declared unconstitutional by the Supreme Court, as it subverts the legislative process and violates democratic accountability.

Judicial Interpretations and Landmark Case Law

Several important judgments have interpreted the scope, validity, and constitutional limits of the Governor’s power under Article 213:

• State of Bihar v. Kameshwar Singh (1952):One of the earliest cases interpreting the Ordinance-making power, the Supreme Court held that while Ordinances are temporary laws, they must conform to the Constitutional distribution of powers between the Union and the States.
• Keshavananda Bharati v. State of Kerala (1973):The Court’s articulation of the basic structure doctrine implied that the Governor’s power to issue Ordinances cannot be exercised in a way that violates the Constitution’s fundamental structure—including democracy, the rule of law, and separation of powers.
• A.K. Roy v. Union of India (1982):The Court clarified that the satisfaction of the Governor under Article 213 is not beyond judicial review. The courts may intervene if the power is exercised mala fide or without any genuine urgency.
• D.C. Wadhwa v. State of Bihar (1987):A landmark judgment where the Supreme Court condemned the practice of re-promulgating Ordinances without placing them before the Legislature. The Court held that such re-promulgation is a fraud on the Constitution and undermines democratic governance.
• Krishna Kumar Singh v. State of Bihar (2017):The Supreme Court reaffirmed that an Ordinance must be laid before the Legislature and cannot be re-promulgated indefinitely. The Court also held that the failure to lay an Ordinance before the Legislature amounts to a violation of constitutional obligation.

These rulings collectively emphasise that the Governor’s power under Article 213 must be exercised with constitutional restraint and accountability.

Significance of Article 213

Article 213 plays a vital role in the functioning of state governments by providing a mechanism for immediate legislative action when the Legislature is not in session. Its significance can be understood through the following aspects:

• Continuity of Governance: Ensures that urgent administrative and legal measures are not delayed due to legislative recess.
• Flexibility in Emergency Situations: Enables swift responses to unforeseen circumstances such as natural disasters, public health crises, or economic emergencies.
• Balance Between Executive and Legislature: While empowering the Governor, it also subjects the Ordinance to legislative scrutiny, maintaining democratic accountability.

Limitations and Criticisms

Despite its practical utility, the power under Article 213 has been subject to criticism and debate:

1. Potential for Misuse:Governors and State Governments have sometimes issued Ordinances for political or administrative convenience rather than genuine emergencies, bypassing legislative debate.
2. Erosion of Legislative Authority:Frequent or successive promulgation of Ordinances weakens the role of the Legislature and disturbs the principle of representative law-making.
3. Ambiguity of “Governor’s Satisfaction”:The subjective nature of the Governor’s satisfaction may lead to controversy, though judicial review now provides a safeguard.
4. Democratic Accountability:Ordinances, being executive actions, lack the deliberative scrutiny of elected representatives, raising concerns about transparency and public participation.

Relationship with Union Powers and Federal Balance

Article 213 reflects India’s quasi-federal structure, mirroring the President’s Ordinance-making power under Article 123. However, the Governor’s power is subject to the President’s oversight in certain cases, maintaining federal balance and preventing states from enacting ordinances that conflict with national interests.

Contemporary Relevance

In recent years, the use of the Ordinance-making power by both the Union and the States has sparked debates about executive overreach. While justified during emergencies such as the COVID-19 pandemic, repeated reliance on Ordinances for routine legislation has raised concerns about the dilution of legislative process.