Article 239B

Article 239B of the Indian Constitution grants the Administrator of a Union territory the authority to promulgate Ordinances when the Legislature of that territory is not in session. This provision ensures continuity of governance and enables immediate legislative action in urgent situations where waiting for the legislative assembly to reconvene would be impractical. However, this power is subject to constitutional limitations and operates under the supervision and instruction of the President of India, preserving the centralised nature of Union territory administration.

Constitutional Background and Purpose

The power of promulgating Ordinances in the Indian constitutional framework serves as a mechanism for addressing emergencies and unforeseen circumstances requiring prompt legal measures. Article 239B extends a power similar to that of Article 213, which applies to Governors in the states, but with one crucial distinction — the Administrator of a Union territory must act strictly under the President’s instructions.
This article was introduced to accommodate the governance requirements of Union territories with legislatures, such as Delhi and Puducherry, allowing their administrators to ensure effective governance during legislative recesses. It reflects the principle of executive flexibility within constitutional boundaries, ensuring that urgent matters can be addressed without violating the supremacy of legislative authority.

Authority to Promulgate Ordinances

Article 239B(1) empowers the Administrator of a Union territory to promulgate Ordinances if the following conditions are met:

1. The Legislature of the Union territory is not in session.
2. The Administrator is satisfied that circumstances exist requiring immediate action.
3. The Administrator has obtained prior instructions from the President of India before promulgating the Ordinance.

An Ordinance cannot be promulgated when the Legislature is dissolved or suspended, as its purpose is to bridge the legislative gap during temporary recesses, not to replace the democratic process.
The requirement of presidential instruction ensures constitutional accountability and prevents misuse of power by the Administrator. This establishes a safeguard that differentiates the Ordinance power in Union territories from that of state Governors, reinforcing central oversight in territories directly under the Union’s jurisdiction.

Nature, Effect, and Duration of Ordinances

An Ordinance issued under Article 239B carries the same force and effect as an Act of the Legislature of the Union territory, subject to the following conditions:

• The Ordinance must be laid before the Legislature when it reassembles.
• It ceases to operate six weeks after the Legislature reconvenes, unless it is approved earlier.
• The Legislature can disapprove the Ordinance at any time, upon which it immediately ceases to be in force.
• The Administrator, acting with the President’s instructions, may withdraw the Ordinance at any time before legislative approval.

Thus, the Ordinance is a temporary legislative instrument, designed for emergencies but always subject to the Legislature’s scrutiny and approval. This ensures that the principle of legislative supremacy remains intact even in extraordinary circumstances.

Key Constitutional Terms

• Administrator: The appointed head of a Union territory who governs the territory on behalf of the President of India.
• Ordinance: A temporary law promulgated by the executive authority during the recess of the Legislature, having the same effect as an Act of the Legislature until it expires or is repealed.
• Legislature of the Union Territory: The elected legislative body empowered to make laws for certain Union territories under Article 239A or Article 239AA.

Judicial Interpretations and Landmark Case Laws

Judicial pronouncements have clarified the constitutional boundaries and validity of Ordinances, shaping the interpretation of Article 239B:

• Keshavananda Bharati v. State of Kerala (1973): This landmark judgment established the basic structure doctrine, emphasising that executive powers, including the promulgation of Ordinances, must conform to constitutional principles such as separation of powers and democratic accountability.
• Minerva Mills Ltd. v. Union of India (1980): Reinforced the need for balance between the legislative, executive, and judicial organs of government, ensuring that Ordinance-making powers are not used to bypass democratic processes.
• State of Bihar v. Kameshwar Singh (1952): One of the earliest cases addressing the validity of Ordinances, it held that Ordinances have the same legal status as Acts but must be laid before the Legislature for approval.
• Krishna Kumar Singh v. State of Bihar (2017): The Supreme Court clarified that re-promulgation of Ordinances without legislative approval violates the Constitution. It emphasised that the Ordinance-making power is not an independent legislative power but a temporary substitute for the legislative process in exceptional circumstances.

Together, these cases underline the constitutional limits of executive law-making and affirm that Ordinances are subject to legislative oversight and judicial scrutiny.

Relation with Other Constitutional Provisions

Article 239B operates in conjunction with several related articles that define the governance framework of Union territories:

• Article 239: Provides for the administration of Union territories by the President through appointed Administrators.
• Article 239A: Empowers Parliament to create Legislatures and Councils of Ministers for certain Union territories.
• Article 239AA: Provides for the governance of the National Capital Territory of Delhi, to which Article 239B also applies.
• Article 213: Grants similar powers to the Governors of states to promulgate Ordinances, serving as a comparative constitutional reference for Article 239B.

These provisions collectively ensure that Union territories, though under the administrative control of the Centre, have mechanisms for effective governance even during legislative inactivity.

Practical Implications

The primary objective of Article 239B is to ensure continuity in governance and swift legislative response during emergencies or urgent situations when the Legislature is not in session. For example, if immediate legal provisions are required to address a public health crisis, administrative reform, or financial regulation, the Administrator can promulgate an Ordinance with the President’s approval, enabling immediate enforcement until formal legislative approval is obtained.
This mechanism provides:

• Administrative flexibility to respond quickly to urgent needs.
• Constitutional accountability through presidential oversight.
• Legislative continuity by ensuring that urgent matters do not remain unaddressed until the next session.

However, the power is temporary and exceptional, and its use must always respect the legislative prerogative of the elected representatives.

Limitations and Safeguards

Article 239B imposes several constraints to prevent misuse of Ordinance-making powers:

• The Administrator cannot act independently; prior presidential instruction is mandatory.
• Ordinances cannot be issued during dissolution or suspension of the Legislature.
• Ordinances are subject to legislative disapproval and automatically expire after six weeks of the Legislature’s reassembly.
• Judicial review is available to examine the necessity and validity of promulgated Ordinances.

These safeguards uphold constitutional propriety and ensure that executive action remains within democratic bounds.