EPFO APFC 2023 General Studies · Question 56 of 120

Correct — A, (a) 1 and 2 only. The ask is negative — the booklet prints the word not in bold italic — so the option wanted is the one listing the statements that are wrong. Statements 1 and 2 are wrong; statement 3 is right, which is why every option containing 3 fails. Statement 1 is not correct. The Governor's power under Article 213 is a legislative power exercised on the aid and advice of the Council of Ministers, not a discretionary one. Article 163(1) makes the Council of Ministers the Governor's advisers in all matters except those where the Constitution requires him to act in his discretion, and ordinance-making is nowhere named as such a matter. The satisfaction that circumstances exist rendering immediate action necessary is, in substance, the satisfaction of the government of the day. Treating it as a personal discretion would give a Governor a legislative power the elected ministry does not control, which is the opposite of the scheme. Statement 2 is not correct, and the error is the words all the three. The ordinance power is co-extensive with the legislative power of the State legislature and no wider: Article 213(3) makes an ordinance void so far as it makes any provision that would not have been valid if enacted in an Act of the State legislature. A State legislature can legislate on the State List and the Concurrent List, so an ordinance reaches those two Lists — never the Union List. Statement 3 is correct, and it is the technical point on which the whole item turns. Ordinarily a State law repugnant to a Union law on a Concurrent subject is void to the extent of the repugnancy, and it survives only if it was reserved for the President's consideration and received his assent, under Article 254(2). The proviso to Article 213(3) plugs an ordinance into that machinery: an ordinance promulgated in pursuance of instructions from the President is deemed to be an Act of the State legislature that has been reserved for the President's consideration and assented to by him. So such an ordinance prevails in that State notwithstanding the repugnancy — exactly as the statement says. The instructions themselves come from the proviso to Article 213(1), which forbids the Governor to promulgate, without the President's instructions, an ordinance whose provisions in a Bill would have needed the President's previous sanction, or would have led him to reserve the Bill, or would have been invalid without the President's assent. Since statement 3 is correct, only statements 1 and 2 belong in the answer.

• (b)1, 2 and 3 — This gets both of the wrong statements right and then adds the one statement that is correct. Statement 3 reproduces the effect of the proviso to Article 213(3) accurately: an ordinance promulgated in pursuance of instructions from the President is deemed to be a State Act reserved for the President's consideration and assented to by him, so it survives repugnancy with a Union law on a Concurrent subject in the same way Article 254(2) allows a reserved and assented State Act to survive. A candidate reaches this option by assuming that a State instrument can never prevail over a Union law, which is the ordinary rule but not the whole rule; the presidential route is the exception the Constitution provides, and the ordinance is expressly fitted into it.
• (c)2 and 3 only — This correctly rejects statement 2 but makes two further mistakes at once — it treats statement 3 as wrong when it is right, and it treats statement 1 as right when it is wrong. Statement 1 asserts that ordinance-making is a discretionary power exercised without ministerial advice, and that is not the position: Article 163(1) confines the Governor's discretion to matters in which the Constitution expressly requires it, and Article 213 contains no such requirement, so the power is exercised on the advice of the Council of Ministers like any other executive act. The idea that anything a Governor personally signs must be discretionary is the intuition this option trades on, and it is the single commonest error on the office of the Governor.
• (d)3 only — This is the exact inversion of the correct answer: it names as wrong the one statement that is right, and accepts as right the two that are wrong. It is the option a candidate lands on by reading the ask as positive — by looking for the statements that are correct rather than those that are not — and then getting even that reading wrong on the presidential-instructions point. Two defences apply. First, read the ask twice on any item where the negation is printed in bold italic, because the whole answer inverts on it. Second, once the status of each statement is settled, check the chosen option against all three rather than against the one that felt decisive; here, an option that rejects statement 3 has to be defended against the plain words of the proviso to Article 213(3).

Article 213 gives the Governor a power to legislate when the State legislature is not sitting. It may be exercised only when the Legislative Assembly is not in session, or, in a State with a Legislative Council, when both Houses are not in session, and only if the Governor is satisfied that circumstances exist rendering immediate action necessary. An ordinance so promulgated has the same force and effect as an Act of the State legislature assented to by the Governor, and it is subject to the same limits: by Article 213(3) it is void so far as it contains anything the legislature itself could not have enacted, which confines it to the State List and the Concurrent List and subjects it to the fundamental rights and to every other constitutional restriction. Its life is short. It must be laid before the legislature when it reassembles and it ceases to operate six weeks from that reassembly, or earlier if a disapproving resolution is passed; the Governor may withdraw it at any time. Because Article 174 requires that six months not elapse between sittings, the outer life of an ordinance is a little over seven months. Three limits are peculiar to the State power and have no counterpart in the President's power under Article 123. The proviso to Article 213(1) requires the President's instructions before the Governor promulgates an ordinance in three classes of case — where a Bill with the same provisions would have needed the President's previous sanction for introduction, where the Governor would have reserved such a Bill, or where an Act with those provisions would have been invalid without the President's assent. The proviso to Article 213(3) then treats an ordinance made on such instructions as a reserved and assented Act for the purposes of repugnancy, which is what allows it to prevail over a Union law on a Concurrent subject. The courts have policed the power rather than the policy: R. K. Garg v. Union of India treated ordinance-making as legislative power of the same character as the legislature's own; D. C. Wadhwa v. State of Bihar held the repeated re-promulgation of ordinances to be a fraud on the Constitution; and Krishna Kumar Singh v. State of Bihar, decided by a seven-judge Bench, confirmed that re-promulgation is impermissible and that laying the ordinance before the legislature is a constitutional requirement rather than a formality.

The polity block of this paper favours items in which each statement is a precise proposition about a constitutional provision, and the discriminating knowledge is textual rather than conceptual. This one is a good example: a candidate who knows only that the Governor can issue ordinances will find all three statements plausible, while a candidate who has read Article 213 can settle each in a sentence. It also illustrates the Commission's habit of building one statement out of a genuine exception — statement 3 states the presidential-instructions route accurately, and it looks wrong to anyone who remembers only the general rule that Union law prevails on the Concurrent List. Note the printing. The negation in the stem is set in bold italic, as on all seventeen negative asks in this booklet; statement 1 carries a second, unemphasised negation of its own in the words does not entail; the word notwithstanding in statement 3 is broken across a line in the booklet and joined here; and the word instructions is printed inside curly single quotation marks, which is the booklet's way of pointing at the constitutional term of art.

• Article 213 lets the Governor promulgate an ordinance only when the Legislative Assembly is not in session, or, where there is a Council, when both Houses are not in session, and only on satisfaction that immediate action is necessary.
• The power is exercised on the aid and advice of the Council of Ministers under Article 163(1); it is not one of the Governor's discretionary functions.
• An ordinance is co-extensive with the State legislature's competence, so it reaches the State List and the Concurrent List but never the Union List; Article 213(3) makes it void so far as it exceeds that competence.
• It must be laid before the legislature and ceases to operate six weeks after reassembly, or earlier on a disapproving resolution; the Governor may withdraw it at any time.
• The proviso to Article 213(1) requires the President's instructions before promulgation in three cases — where a Bill would have needed the President's previous sanction, where the Governor would have reserved it, or where an Act would have been invalid without the President's assent.
• The proviso to Article 213(3) deems an ordinance made on the President's instructions to be a State Act reserved for and assented to by the President, so that under Article 254(2) it prevails over a repugnant Union law on a Concurrent subject.
• D. C. Wadhwa v. State of Bihar held repeated re-promulgation to be a fraud on the Constitution, and Krishna Kumar Singh v. State of Bihar, a seven-judge Bench, reaffirmed that and held that laying the ordinance before the legislature is mandatory.

• Assuming that anything the Governor does personally is discretionary; ordinance-making is done on ministerial advice, and the discretion in Article 163 is confined to matters the Constitution names
• Accepting that the ordinance power covers all three Lists; it is co-extensive with the State legislature's competence, which excludes the Union List
• Rejecting statement 3 because the general rule is that Union law prevails on the Concurrent List; the presidential-instructions route is a constitutional exception written into the proviso to Article 213(3)
• Reading the ask as positive when the negation is printed in bold italic — the answer inverts completely
• Confusing the six-week period, which runs from the reassembly of the legislature, with a fixed six-week life from the date of promulgation

The polity block of this paper sets three-statement items with a code, and on ordinance power the examiner returns to the same four points: who advises, which Lists are reachable, how long the ordinance lives, and what the President's instructions do. Expect one statement to state an exception accurately so that it reads as false, and expect the ask to be negative about as often as it is positive. Reading Articles 123, 213 and 254 side by side answers most of what can be set.

No directly related past PYQ was found.

• practice — not a real PYQ

  An ordinance promulgated by the Governor of a State ceases to operate at the expiration of

  • (a)six weeks from the date of its promulgation
  • (b)six weeks from the reassembly of the State legislature
  • (c)six months from the date of its promulgation
  • (d)the session of the legislature in which it is laid

  Answer(b) six weeks from the reassembly of the State legislature — Article 213(2) requires the ordinance to be laid before the legislature and provides that it ceases to operate six weeks after reassembly, or earlier if a resolution disapproving it is passed. Because Article 174 forbids a gap of more than six months between sittings, the outer life of an ordinance is a little over seven months.

• practice — not a real PYQ

  The proviso to Article 213(1) requires the Governor to obtain instructions from the President before promulgating an ordinance in a case where

  • (a)the ordinance relates to any subject in the Concurrent List
  • (b)a Bill containing the same provisions would have required the President's previous sanction for its introduction
  • (c)the State legislature has been dissolved
  • (d)the ordinance imposes any tax

  Answer(b) a Bill containing the same provisions would have required the President's previous sanction for its introduction — that is the first of the three cases in the proviso, the others being where the Governor would have reserved such a Bill for the President and where an Act containing those provisions would have been invalid without the President's assent. The Concurrent List as such raises no requirement of instructions, and neither dissolution nor taxation is a trigger.