Article 213 in Constitution of India

 

Article 213 in Constitution of India

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 Ordinances 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 under this Constitution 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 under this Constitution 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 Legislature of the State assented to by the Governor, but every such Ordinance--

(a)shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, 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 or, as the case may be, on the resolution being agreed to by the Council; and

(b)may be withdrawn at any time by the Governor.

Explanation.--Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of (hose dates for the purposes of this clause.

(3)If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a Slate which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.[Re-promulgation of Ordinances -Krishna Kumar Singh v State of Bihar. A 7-judge Constitution bench has held that unfettered re-promulgation of ordinances is not permissible by the Constitution. On 2nd January, 2017, a seven-judge Constitution Bench of the Supreme Court held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. The majority Judgment, authored by Justice DY Chandrachud, held that the requirement of placing the ordinance before the Legislature is mandatory; Justice Madan B Lokur observed that it is directory; Justice Thakur, the Chief Justice of India as he was then, in his separate concurring opinion, preferred to leave the ‘question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open. The Supreme Court of India’s seven-judge Constitution Bench ruled that the “RE-PROMULGATION OF ORDINANCES” must be taken to be a violation of our Indian Constitution as it undermines parliamentary legislative procedures. This Bench furthermore ruled that: “The approval and gratification of the President of India, under Article 123, and the Governor, under Article 213, when issuing an Ordinance is not excluded from judicial process and legal challenge.”(https:indiankanoon.org/doc/107225908/, https:blog.ipleaders.in unconstitutionality-of-the-re-promulgation-of-ordinances-the-krishna-kumar-singh-conundrum/)][Editorial comment-The Constitution (Thirty-Eighth Amendment) Act, 1975, codified the declaration of Emergency and empowered the State to remove fundamental rights during a state of emergency. This made the Emergency final and inclusive, giving the State the power to suspend certain rights of its citizens. Currently, there is an ongoing amendment procedure aimed at eliminating obsolete and unproductive portions of the Constitution and integrating new ones to address evolving social requirements. Any changes made should aim to improve people’s living conditions and foster social peace, rather than demolishing the current framework."Also Refer][Editorial comment-The Constitution (Forty-Fourth Amendment) Act, 1978, repealed Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and made a separate Article 300A in Chapter IV of Part XII. This amendment may have taken away the scope of speedy remedy under Article 32 for the violation of Right to Property because it is no more a Fundamental Right. Making it a legal right under the Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism included in the preamble and secondly, in doing so, it conformed to the doctrine of basic structure of the Constitution. Also Refer]