Governor's Ordinance-Making Power

Governor's ordinance-making power under Article 213 of the Constitution allows a Governor to promulgate ordinances that have the force of law when the State Legislature is not in session, giving the State Executive a way to act on urgent matters that cannot wait for the Assembly (and Council, where one exists) to reassemble.

What Article 213 Provides

Article 213(1) empowers the Governor to promulgate such ordinances as the circumstances appear to him to require, at any time except when the Legislative Assembly is in session, or, in a State with a Legislative Council, except when both Houses are in session. The Governor may act only when satisfied that circumstances exist rendering immediate action necessary.

When the Governor Needs the President's Instructions

Article 213 places a distinctive limit on the Governor's ordinance power: the Governor cannot promulgate an ordinance without instructions from the President in three situations traceable to the constitutional treatment of the underlying subject-matter. These are: where a Bill containing the same provisions would, under the Constitution, have required the previous sanction of the President before it could even be introduced in the State Legislature; where the Governor would have considered it necessary to reserve a Bill with 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 it had been reserved for the President's consideration and received his assent. In each of these situations, an ordinance is treated the same way a corresponding Bill or Act would be treated -- it cannot bypass the President's role simply because the Legislature is not sitting.

Constituent Assembly Debate

The inclusion of discretionary and emergency-type powers for the Governor was contested in the Constituent Assembly. Pandit Lakshmi Kanta Maitra argued that discretionary Governor's powers under the Government of India Act, 1935 had caused friction between the provinces and the Governors, that these frictions had been removed after August 1947, and that reintroducing such discretionary powers in the new Constitution represented a step backward. This debate reflects the broader unease among some framers about vesting a Governor, as opposed to a popularly accountable legislature, with law-making capacity even on a temporary basis.

D.C. Wadhwa v. State of Bihar (1986): Curbing Repeated Re-promulgation

The leading judicial pronouncement on the misuse of the Governor's ordinance power is D.C. Wadhwa v. State of Bihar (1986). The Supreme Court found that the Governor of Bihar had promulgated 256 ordinances between 1967 and 1981, and that many of these were kept in force for periods ranging from one to fourteen years through repeated re-promulgation of the same text, rather than being placed before the State Legislature for enactment as Acts. The Court held that this pattern of repeated re-promulgation, without any genuine attempt to secure the Legislature's own approval, amounted to a fraud on the Constitution, since it converted what the Constitution intended as an exceptional, stop-gap power into a parallel and permanent mode of law-making that bypassed the Legislature altogether.

UPSC Relevance

Prelims: Know the text and structure of Article 213 -- the recess condition, the Governor's satisfaction requirement, and the three specific situations in which the Governor needs the President's instructions before promulgating an ordinance.

Mains: This topic feeds into questions on gubernatorial discretion, Centre-State relations, and misuse of ordinances as a substitute for legislative debate at the State level. D.C. Wadhwa v. State of Bihar (1986) is the standard citation for judicial checks on repeated re-promulgation of ordinances by a Governor.

FAQ

Q1. When can a Governor promulgate an ordinance under Article 213? Only when the Legislative Assembly is not in session (or, in a bicameral State, when both Houses are not in session) and the Governor is satisfied that circumstances require immediate action.

Q2. Does the Governor always act on his own in promulgating an ordinance? Not always. In three specific situations -- where the same provisions in a Bill would have needed the President's previous sanction to be introduced, would have needed to be reserved for the President's consideration, or would have needed presidential assent to be valid as an Act -- the Governor cannot promulgate the ordinance without instructions from the President.

Q3. What did the D.C. Wadhwa case decide? That the Bihar Governor's practice of repeatedly re-promulgating the same ordinances for years, without seeking their passage as Acts through the Legislature, amounted to a fraud on the Constitution.

Q4. How many ordinances did the Bihar Governor promulgate in the period examined in D.C. Wadhwa? 256 ordinances between 1967 and 1981, some kept alive for one to fourteen years through repromulgation.

Quick Revision

• Article 213: Governor may promulgate ordinances only when the Legislature (or, if bicameral, both Houses) is not in session.
• Governor must be satisfied that circumstances require immediate action.
• Presidential instructions required before promulgation in three situations tied to Bills/Acts that would otherwise need presidential sanction, reservation, or assent.
• Debated in the Constituent Assembly as a revival of discretionary Governor's powers from the Government of India Act, 1935.
• D.C. Wadhwa v. State of Bihar (1986): repeated re-promulgation of ordinances without seeking legislative passage is a fraud on the Constitution.

Sources

• Constitution of India, Article 213 -- legislative.gov.in
• D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 -- Supreme Court of India

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) -- the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) -- authoritative constitutional-law treatment.
• The Constitution of India -- Bare Act -- the official text.

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