General Studies IIConstitution

Power of Governor to promulgate ordinances

Context: The U.P. religious conversion ordinance


Justice (retd.) Madan B. Lokur says….

Article 213 (1) of the Constitution of India provides: “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: …” There are, therefore, three pre-conditions to be satisfied before the Governor promulgates an ordinance: first, the State Legislature should not be in session; circumstances should exist for promulgating an ordinance and importantly, those circumstances must warrant immediate action

There is no established practice requiring the Governor (or the President under Article 123 of the Constitution) to state the circumstances for immediate action. Therefore, while the recent Commission for Air Quality Management Ordinance gave a four page justification for immediate action, the Farmer’s Produce Trade and Commerce Ordinance merely stated in the preamble what the ordinance provides for, but did not disclose the circumstances and urgency for immediate action. 

Justice (retd.) Madan B. Lokur is a former judge of the Supreme Court of India

The most important case on article 213 is D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579. Dr. Wadhwa’s book Re-promulgation of Ordinances traces history of the Ordinances “making power in a comprehensive manner. Earlier decisions such as State of Punjab v. Satya Pal, AIR 1969 SC 903 should now be read subject to D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.

(a) directly violated a constitutional provision, or
(b) exceeded his constitutional power tn make an Ordinance, or
(e) has made a colourable use of such puwer (e.g. by successive repromulgation of an Ordinance
without getting an Act of the Legislature passed to replace an expiring Ordinance)
the Court would strike down the Ordinance





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