Article 213 of the Indian Constitution is a crucial provision that empowers the Governor of a State to issue ordinances when the State Legislature is not in session. This power is intended to address situations requiring immediate action, ensuring that governance continues effectively even when the legislature cannot convene. The article outlines the conditions under which an ordinance can be promulgated, its limitations, and its lifespan.
Original Text
213. Power of Governor to promulgate Ordinances during recess of Legislature
(1) 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 Ordinance as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if—
(a) a Bill containing the same provisions would have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance—
(a) shall be laid before the Legislative assembly or where there is a Legislative Council in the State, before both the Houses of the legislature;and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution; and
(b) may be withdrawn at any time by the Governor.
(3) Where the Legislative Assembly of a State is dissolved, or the prorogation of the Legislature takes place during the period prescribed in clause (2) for the laying of an Ordinance before the Legislature, the Ordinance shall cease to operate at the expiration of six weeks from the date of the reassembly of the Legislature after the dissolution or prorogation, as the case may be; and
(4) Nothing in this article shall be deemed to prejudice the power of the Legislature of the State to make any provision with respect to any matter.
Detailed Explanation
Article 213 of the Indian Constitution grants the Governor of a State the power to promulgate Ordinances when the State Legislature is not in session. This power is not absolute and is subject to certain conditions and limitations.
Clause (1)
- It states that the Governor can issue an Ordinance only when the Legislative Assembly (or both Houses of the Legislature if there is a Legislative Council) is not in session.
- The Governor must be satisfied that circumstances exist which necessitate immediate action. This satisfaction is subjective but must be based on reasonable grounds.
- The Ordinance should address the specific circumstances that require immediate action.
- A proviso restricts the Governor from promulgating an Ordinance without instructions from the President if a Bill containing similar provisions would have required the President’s prior sanction, reservation for consideration, or assent for validity.
Clause (2)
- An Ordinance promulgated under Article 213 has the same force and effect as an Act of the State Legislature assented to by the Governor. This underscores the temporary legislative nature of an Ordinance.
- The Ordinance must be laid before the Legislative Assembly (or both Houses, where applicable).
- The Ordinance ceases to operate six weeks after the reassembly of the Legislature unless a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any.
- The Governor can withdraw the Ordinance at any time.
Clause (3)
- If the Legislative Assembly is dissolved or the Legislature is prorogued during the six-week period for laying the Ordinance, the Ordinance ceases to operate six weeks from the date of the reassembly of the Legislature after the dissolution or prorogation.
Clause (4)
- It clarifies that Article 213 does not affect the Legislature’s power to make laws on any matter. This reinforces the supremacy of the Legislature as the primary law-making body.
Detailed Notes
- Power of Governor: Grants the Governor the power to promulgate Ordinances.
- Condition for Promulgation: Only when the State Legislature is not in session.
- Necessity: The Governor must be satisfied that circumstances necessitate immediate action.
- Limitations based on Presidential Involvement:
- President’s prior sanction needed for a similar Bill.
- Governor would have reserved a similar Bill for President’s consideration.
- A similar Act would have been invalid without President’s assent.
- Force and Effect: An Ordinance has the same force as an Act of the State Legislature.
- Laying before Legislature: Ordinance must be laid before the Legislative Assembly (or both Houses, where applicable).
- Duration:
- Expires six weeks from the reassembly of the Legislature.
- Expires earlier if a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any.
- Withdrawal: The Governor can withdraw the Ordinance at any time.
- Effect of Dissolution/Prorogation: If dissolution or prorogation occurs during the six-week period, the Ordinance expires six weeks from the reassembly of the Legislature.
- Legislative Supremacy: Article 213 does not affect the Legislature’s law-making power.
- Judicial Review: The Governor’s satisfaction regarding the necessity of an ordinance is subject to judicial review (SC in RC Cooper v. Union of India and Krishna Kumar Singh v. State of Bihar). The mala fide exercise of this power can be challenged.
- Repromulgation: Repeated promulgation of ordinances without placing them before the legislature has been held to be unconstitutional.
- Scope: The scope of ordinance making power is co-extensive with the legislative powers of the state legislature. An ordinance can make any provision which a state legislature is competent to enact.
- Parallel Provision: Article 123 provides similar powers to the President of India at the Union level.
Additional Comments
- The power to promulgate ordinances is an extraordinary power and should be used sparingly.
- The satisfaction of the Governor is not beyond judicial review. Courts can examine whether the Governor had relevant material to arrive at the satisfaction that circumstances existed warranting the issuance of the ordinance.
- Repromulgation of ordinances without legislative action is a violation of the Constitution and an abuse of power.
- The ordinance-making power should not be used to bypass the legislature or to make laws that are not in the public interest.
Summary
The Governor of a State has the power to issue Ordinances when the State Legislature is not in session, provided immediate action is necessary. An Ordinance holds the same legal weight as an Act of the Legislature, but it must be presented to the Legislature upon reassembly and ceases to be effective after six weeks unless approved, or if disapproved by a resolution. The Governor can withdraw an ordinance at any time. The Governor’s power is subject to judicial review, and the Legislature’s overall power to legislate is unaffected.