Constitution of India
Article 213: Power of Governor to promulgate Ordinances during recess of Legislature
Part VI — The States (Chapter IV — Legislative Power of the Governor)
Clause (1)
WHAT IT SAYS: The Governor may promulgate Ordinances when the State Legislature (or both Houses in a bicameral state) is NOT in session, if satisfied that circumstances require immediate action. PROVISO TO CLAUSE (1): 1. The Governor shall NOT promulgate an Ordinance without Presidential instructions if — (a) A Bill with the same provisions would have required prior Presidential sanction for introduction. (b) He would have deemed it necessary to reserve such a Bill for the President's consideration. (c) A State Act with the same provisions would have been invalid without Presidential assent. WHAT IT MEANS: 1. This is an EMERGENCY LEGISLATIVE POWER — not a parallel law-making power. 2. Governor acts on State Cabinet advice, NOT in personal discretion. 3. Presidential instructions are needed where the subject involves Union-level oversight. KEY DOCTRINE: 1. Doctrine of Subjective Satisfaction — Governor's satisfaction was historically non-justiciable, but post-44th Amendment (1978), it IS subject to judicial review. 2. Doctrine of Presidential Legislation (Prof. Shubhankar Dam) — Ordinance-making is a conditional legislative power exercised by the executive standing in for the legislature.
Clause (2)
WHAT IT SAYS: 1. An Ordinance has the SAME FORCE AND EFFECT as a State Legislature Act assented to by the Governor. 2. Sub-clause (a): Must be laid before the Legislative Assembly (or both Houses in bicameral states). 3. Ceases to operate after 6 WEEKS from reassembly of Legislature, OR earlier if a disapproval resolution is passed. 4. Sub-clause (b): Governor may WITHDRAW the Ordinance at any time. EXPLANATION: Where both Houses reassemble on different dates, the 6-week period runs from the LATER date. WHAT IT MEANS: 1. Ordinances are TEMPORARY — maximum life is 6 weeks + 6 months (inter-session gap). 2. Laying before the Legislature is MANDATORY (per Krishna Kumar Singh, 2017 majority). 3. Governor retains unilateral withdrawal power. KEY DOCTRINE: 1. Anti-Fraud Doctrine — Re-promulgation of ordinances without placing before Legislature is a 'fraud on the Constitution' (D.C. Wadhwa, 1987; Krishna Kumar Singh, 2017).
Clause (3)
WHAT IT SAYS: An Ordinance is VOID to the extent it contains provisions that would be invalid if enacted as a State Legislature Act assented to by the Governor. PROVISO: For matters on the Concurrent List — an Ordinance issued under Presidential instructions is deemed to be a State Act reserved for and assented to by the President. This resolves repugnancy under Article 254. WHAT IT MEANS: 1. Ordinances CANNOT exceed the legislative competence of the State Legislature. 2. Repugnancy with Central law is saved ONLY if the Ordinance was issued on Presidential instructions. 3. Otherwise, Article 254 repugnancy rules apply — the Central law prevails. KEY DOCTRINE: Doctrine of Repugnancy (Article 254) — State ordinances on Concurrent List subjects must not conflict with Central laws unless shielded by Presidential instructions.
Clause (4) — INSERTED by 38th Amendment (1975) and DELETED by 44th Amendment (1978)
WHAT IT SAID (1975-1978): The satisfaction of the Governor under Clause (1) shall be FINAL and CONCLUSIVE and shall NOT be questioned in any court on any ground. WHAT IT MEANS: 1. During the Emergency era, this clause BARRED judicial review of the Governor's decision to promulgate ordinances. 2. The 44th Amendment (1978) DELETED this clause, restoring judicial review. 3. Post-deletion, the Governor's satisfaction is NOW JUSTICIABLE. KEY DOCTRINE: Restoration of Judicial Review — The 44th Amendment reversed the Emergency-era ouster clause, reaffirming rule of law and separation of powers.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 88 (Governor's ordinance power at Provincial level) and Section 42 (Governor-General's ordinance power at Federal level) Original provision: Section 88 empowered the Provincial Governor to promulgate ordinances during recess of the Legislature when satisfied that immediate action was necessary, with the same force as a Provincial Act. What India kept: The basic framework — Governor's satisfaction, 6-week expiry, same force as legislative act, and need for Presidential/Governor-General instructions on reserved subjects. 2. Government of India Act, 1935 — Section 43 (Governor-General's emergency ordinance power) Original provision: Allowed Governor-General to issue ordinances in his discretion for up to 6 months, extendable once. What India kept: The concept of executive emergency law-making, but India limited it far more strictly. INDIA'S SPECIFIC ADAPTATIONS: 1. Removed 'individual judgment' discretion — Under Section 88 of 1935 Act, the Governor exercised 'individual judgment'; India made the Governor act on Council of Ministers' advice (Article 163). 2. Added Presidential oversight proviso — Governor cannot ordinance on subjects requiring Presidential sanction without Presidential instructions, preserving federal balance. 3. Removed Crown's disallowance power — Section 88(2)(b) of 1935 Act subjected ordinances to His Majesty's disallowance; India replaced this with democratic legislative oversight. 4. No separate emergency ordinance power — India did NOT retain Section 43-type independent discretionary emergency ordinances for the Governor; emergency at state level is handled via Article 356 instead.
Constituent Assembly Debate
DEBATED ON: 14 June 1949 (CAD Volume VIII) DRAFT ARTICLE: Draft Article 187 KEY POINTS OF DISCUSSION: 1. Scope and limitations of the Governor's ordinance-making power were defined. 2. One member proposed reducing ordinance life to TWO WEEKS from the date of promulgation (instead of 6 weeks from reassembly). 3. The same member also proposed deleting the Explanation to Clause (2). 4. Concern raised: An ordinance could remain in force for over 6 months if the Legislature was not summoned, effectively becoming permanent executive law-making. 5. Some members debated whether this power should be confined only to the President, not individual Governors, to ensure centralized control. MAJOR DISAGREEMENTS: 1. Duration of ordinance — Critics argued 6 weeks from reassembly was too long; proponents argued urgency required flexibility. 2. Governor's discretion vs. Cabinet advice — Whether the Governor should have independent judgment (as under 1935 Act) or act on ministerial advice. FINAL OUTCOME: All proposed amendments were REJECTED without further debate; Draft Article 187 was adopted as originally proposed on 14 June 1949.
Landmark Judgments
LANDMARK JUDGMENTS: 1. R.C. Cooper v. Union of India (1970) — The Court held that the President's decision to promulgate an ordinance can be challenged if immediate action was not genuinely required. 2. A.K. Roy v. Union of India (1982) — Governor's satisfaction under Article 213 is not beyond judicial review; courts may intervene if power is exercised mala fide or without genuine urgency. 3. T. Venkata Reddy v. State of Andhra Pradesh (1985) — Ordinance-making is a LEGISLATIVE power, not executive action; an ordinance should be 'clothed with all the attributes of an Act of Legislature'; Governor's subjective satisfaction is generally non-justiciable except for mala fides. 4. D.C. Wadhwa v. State of Bihar (1987) — Re-promulgation of ordinances without placing them before the Legislature is a FRAUD ON THE CONSTITUTION; Bihar had re-promulgated some ordinances for 14 years. 5. Krishna Kumar Singh v. State of Bihar (2017) — 7-Judge Constitution Bench held: (a) Re-promulgation of ordinances is unconstitutional and subverts democratic legislative process; (b) Laying ordinance before Legislature is MANDATORY (per majority — Justice Chandrachud); (c) Governor's satisfaction is NOT immune from judicial review, especially after 44th Amendment deleted Clause (4). NOTABLE DISSENTS: 1. Justice Madan B. Lokur in Krishna Kumar Singh (2017) — Held that the requirement to lay the ordinance before the Legislature is DIRECTORY, not mandatory; validity of an ordinance cannot depend on the contingency of whether it was tabled. 2. CJI Thakur in Krishna Kumar Singh (2017) — Left the question of mandatory vs. directory nature of obligation under Article 213(2) OPEN. SCHOLARS & JURISTS: 1. Prof. Shubhankar Dam — Coined the term 'Presidential Legislation' for ordinance-making; argued it makes Parliament irrelevant when misused. 2. D.D. Basu — Ordinance power is an emergency power ex necessitate rei, not a parallel legislative power; must be exercised sparingly.