When can a Governor promulgate ordinances?

A Governor may promulgate an ordinance under Article 213 of the Constitution only when the State Legislature is not in session and he is satisfied that circumstances exist rendering it necessary for him to take immediate action, a power that gives the executive a temporary lawmaking capacity to meet urgent situations without waiting for the legislature to reassemble, though this power is hedged with significant procedural and substantive limitations.

Article 213

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. This closely mirrors the President's ordinance-making power under Article 123, and indeed the ordinance so promulgated has the same force and effect as an Act of the State Legislature assented to by the Governor, though it remains subject to the same limitations of legislative competence and constitutional validity that would apply to any ordinary Act of that Legislature.

The proviso to Article 213(1) carves out three specific situations in which the Governor cannot promulgate an ordinance without first receiving instructions from the President: where a Bill containing the same provisions would have required the previous sanction of the President for 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. These three categories effectively extend the President's oversight over the State's ordinary legislative process into the ordinance-making sphere, ensuring the Governor cannot use the ordinance route to bypass safeguards that would otherwise have required Presidential involvement had the matter proceeded as ordinary legislation.

Conditions for the Exercise of the Power

Two cumulative conditions must be satisfied before a Governor can validly promulgate an ordinance.

• The Legislative Assembly, or in a bicameral State both Houses of the Legislature, must not be in session at the time; if even one House of a bicameral legislature is sitting, the Governor retains the power to promulgate an ordinance, since the constitutional bar operates only when both Houses stand simultaneously out of session, whereas in a unicameral State, the mere fact that the single Assembly is not sitting suffices to enliven the power.

• The Governor must be satisfied that circumstances exist rendering it necessary for him to take immediate action, a subjective satisfaction that, as discussed below, has nonetheless been subjected to a degree of judicial scrutiny to prevent misuse.

Article 213(2) provides that an ordinance promulgated under this Article must be laid before the Legislative Assembly, or before both Houses where there is a Legislative Council, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, unless before the expiration of that period a resolution disapproving it is passed by the Assembly and agreed to by the Council if any, in which case the ordinance ceases to operate upon the passing of such resolution. This gives an ordinance a maximum theoretical life extending from the date of promulgation through the recess and six further weeks from reassembly, but no longer, since the legislative process is meant to formalise or reject the ordinance's content through an actual enacted Act within that period.

The Requirement of Ministerial Advice

Since the Governor's ordinary functions under Article 163(1) are to be exercised on the aid and advice of the Council of Ministers except where the Constitution requires him to act in his discretion, and Article 213 nowhere lists ordinance-making among the Governor's discretionary functions, the power to promulgate an ordinance must, in the ordinary course, be exercised on the aid and advice of the State Council of Ministers, exactly as the President's power under the parallel Article 123 is exercised on the advice of the Union Council of Ministers. The Governor's "satisfaction" referred to in Article 213(1) is, therefore, in substance the satisfaction of the Council of Ministers communicated to the Governor, rather than the Governor's independent personal assessment, following the general constitutional philosophy established in Shamsher Singh v. State of Punjab regarding the ceremonial character of the Governor's ordinary functions.

Judicial Scrutiny of the Governor's Satisfaction

Although the ordinance-making power was historically regarded as resting on a subjective satisfaction not open to challenge, the Supreme Court has firmly established that this satisfaction is justiciable to a limited extent. In A.K. Roy v. Union of India, dealing with the President's parallel power under Article 123, the Supreme Court held that the President's satisfaction under Article 123, though ordinarily not open to challenge on the ground of sufficiency or adequacy of material, could nonetheless be examined where the satisfaction was shown to be mala fide or based on wholly extraneous or irrelevant considerations, a standard of review the Court has applied with equal logic to a Governor's satisfaction under Article 213 given the structural identity of the two provisions.

The most significant judicial pronouncement specifically on gubernatorial ordinance-making came in D.C. Wadhwa v. State of Bihar, where the Supreme Court examined the practice of the Bihar Government in repeatedly re-promulgating hundreds of ordinances over several years without ever placing them before the Legislature for enactment into law, effectively using the ordinance mechanism as a permanent substitute for legislative enactment rather than as a temporary emergency measure. The Court held that this practice constituted a colourable exercise of the power under Article 213 and a fraud on the Constitution, since the framers intended the ordinance-making power to be used only to meet a genuinely urgent and temporary situation pending the reassembly of the Legislature, not as a mechanism to indefinitely bypass the Legislature altogether; repeated re-promulgation of ordinances containing the same provisions, without any real intention of placing them before the Legislature for its approval, was held to be unconstitutional and a subversion of the democratic legislative process.

Illustration

Suppose a State faces a sudden public health emergency requiring immediate regulatory measures, at a time when the State Legislative Assembly stands prorogued and is not due to reassemble for several months. The Governor, acting on the aid and advice of the Council of Ministers, may validly promulgate an ordinance under Article 213(1) imposing the necessary regulatory measures, since the twin conditions of the Assembly being out of session and a genuine urgency requiring immediate action are satisfied; such an ordinance would have the same force as an Act of the Legislature until the Assembly reassembles, at which point it must be laid before the House and either enacted into a proper Act or allowed to lapse within six weeks of reassembly. If, however, the Government were to allow this ordinance to lapse and then simply re-promulgate an identical ordinance repeatedly for successive recesses without ever placing it before the Assembly for consideration, this would fall foul of the principle laid down in D.C. Wadhwa v. State of Bihar, since it would amount to permanent executive legislation dressed up as a temporary emergency measure.

The Governor's ordinance-making power under Article 213, therefore, is designed as a carefully bounded emergency mechanism, available only when the Legislature is genuinely out of session and immediate action is truly necessary, exercised in the ordinary course on ministerial advice rather than personal discretion, subject to Presidential oversight in specified categories, and firmly circumscribed by the Supreme Court's insistence in D.C. Wadhwa v. State of Bihar that it can never be allowed to substitute for the ordinary legislative process on a sustained or repeated basis, since doing so would undermine the very foundation of representative lawmaking that the Constitution otherwise entrusts to the elected Legislature.