Discuss the power of the Governor to promulgate Ordinances.

The Governor's power to promulgate ordinances, conferred by Article 213 of the Constitution, is essentially an emergency legislative power vested in the State executive to enable prompt lawmaking when the State Legislature stands prorogued, but this power, though conferring the same force as an enacted statute, is conditional, temporary, and subject to significant constitutional checks that the Supreme Court has progressively tightened to prevent its abuse.

Article 213(1)

Article 213(1) provides that 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. An ordinance so promulgated has the same force and effect as an Act of the Legislature assented to by the Governor, meaning it becomes law of equal standing to ordinary legislation, though it remains inherently temporary and subject to legislative approval or lapse.

Conditions Governing the Exercise of the Power

Two cumulative conditions must exist before the Governor can validly promulgate an ordinance.

• The Legislature must not be in session; for a unicameral State, this means the Legislative Assembly alone must not be sitting, while for a bicameral State, both the Legislative Assembly and the Legislative Council must simultaneously be out of session, meaning the mere sitting of one House in a bicameral legislature is sufficient to bar the ordinance route.

• The Governor must be satisfied that circumstances exist rendering it necessary for him to take immediate action, a requirement of genuine urgency that distinguishes the ordinance power from the ordinary legislative process and confines it to situations that cannot await the Legislature's reassembly.

The Proviso: Restriction Requiring the President's Instructions

The proviso to Article 213(1) restricts the Governor from promulgating certain categories of ordinances without first obtaining instructions from the President. These restricted categories are: where a Bill containing the same provisions would, under the Constitution, have required the previous sanction of the President for its introduction into the Legislature; where the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the President's consideration; and where an Act of the State Legislature containing the same provisions would have been invalid unless, having been reserved for the President's consideration, it received his assent. This proviso ensures that the ordinance route cannot be used to sidestep the Union's oversight over specific categories of State legislation that would otherwise require Presidential involvement, preserving the same checks on the ordinance power that apply to the State's ordinary law-making process.

Requirement of Ministerial Advice

Article 213 nowhere lists ordinance-making among the functions the Governor is required by the Constitution to exercise in his discretion, and Article 163(1) provides that the Governor shall otherwise act on the aid and advice of the Council of Ministers headed by the Chief Minister. Consequently, the Governor's "satisfaction" that circumstances require immediate action is, in constitutional reality, the satisfaction of the Council of Ministers communicated to him, and the Governor is bound to promulgate the ordinance so advised, consistent with the general philosophy of gubernatorial functioning established in Shamsher Singh v. State of Punjab, which held that the Governor, save in narrowly defined discretionary matters, acts only as a constitutional head upon ministerial advice.

Duration and Requirement of Legislative Approval

Article 213(2) requires that an ordinance promulgated under this Article be laid before the Legislative Assembly, or before both Houses where a Legislative Council exists, and provides that it shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, unless a resolution disapproving it is passed by the Assembly, and agreed to by the Council if any, before the expiry of that period, in which case it ceases to operate upon the passing of such resolution. Article 213(2) also permits the Governor to withdraw an ordinance at any time. This structure confirms that the ordinance is meant only as a stop-gap measure pending the Legislature's return, requiring the Legislature to either enact its provisions into a permanent Act or allow it to lapse.

Judicial Review of the Governor's Satisfaction

Although the ordinance-making power was traditionally viewed as founded on a subjective satisfaction largely immune from judicial scrutiny, the Supreme Court has held this satisfaction to be justiciable within defined limits. In A.K. Roy v. Union of India, dealing with the President's identical power under Article 123, the Supreme Court held that while the sufficiency of the material behind the satisfaction cannot ordinarily be examined by the courts, the satisfaction can nonetheless be challenged where it is shown to be based on mala fides or wholly irrelevant and extraneous considerations, a standard the Court has applied with equal force to the Governor's satisfaction under Article 213 given the structural parallel between the two provisions.

The Landmark Ruling on Re-promulgation: Krishna Kumar Singh v. State of Bihar

The most significant judicial pronouncement on the Governor's ordinance power came in Krishna Kumar Singh v. State of Bihar, where a seven-judge Constitution Bench of the Supreme Court examined the notorious practice, particularly prevalent in Bihar, of repeatedly re-promulgating ordinances over successive legislative recesses without ever placing them before the Legislature for enactment into a proper Act, a practice that had earlier been the subject of the Court's disapproval in D.C. Wadhwa v. State of Bihar. The seven-judge Bench, by a majority authored by Justice Chandrachud, held that the ordinance-making power under Articles 123 and 213 is a conditional and emergency power meant to be exercised only when the Legislature is not in session and genuine urgency exists, and that indefinite or repeated re-promulgation of ordinances without placing them before the Legislature amounts to a subversion of the democratic legislative process and a fraud on the constitutional power, since it allows the executive to bypass legislative deliberation altogether under the guise of an emergency measure meant only to be temporary. The Court further held that the President's or Governor's satisfaction under these Articles is not immune from judicial review, and that the question of whether rights and liabilities created under an ordinance survive its lapse must be examined on a case-by-case basis, applying the doctrine of public interest, rather than assuming an automatic and permanent effect merely because the ordinance was, for a time, valid law.

Illustration

Suppose the State Legislature stands prorogued, and a sudden agricultural crisis requires the State Government to immediately regulate the sale of certain essential commodities to prevent hoarding and price manipulation. The Governor, acting on the aid and advice of the Council of Ministers, may validly promulgate an ordinance under Article 213(1) addressing this urgent need, since the Legislature is out of session and genuine immediate action is required; this ordinance would carry the same force as an Act until the Legislature reassembles, at which point it must be placed before the House and either enacted into permanent legislation or allowed to lapse within six weeks of reassembly. If, however, the Government were to allow the ordinance to lapse and then simply re-promulgate an identical ordinance for the next recess, and continue this practice indefinitely without ever seeking the Legislature's actual approval, such conduct would be unconstitutional under the principles laid down in D.C. Wadhwa v. State of Bihar and reaffirmed in Krishna Kumar Singh v. State of Bihar, since it would convert what the Constitution intends as a temporary emergency device into a permanent substitute for legislative enactment.

The Governor's power under Article 213, therefore, occupies a carefully bounded space in the constitutional scheme, permitting genuine emergency legislation when the Legislature cannot immediately convene, while ensuring, through the Presidential instruction requirement in the proviso, the mandatory laying and time-bound expiry under Article 213(2), and the firm judicial correction applied in D.C. Wadhwa v. State of Bihar and Krishna Kumar Singh v. State of Bihar, that this power can never be allowed to displace the ordinary and essential role of the elected Legislature as the primary lawmaking authority of the State.