Which one of the following regarding the ordinance-making power of the Governor is not correct?

1. Constitutional Position of the Governor (basic)

To understand the Governor's role, we must first look at the parliamentary system of government at the state level. In this setup, the Governor occupies a position that is analogous to the President at the Centre. This means the Governor is the nominal executive authority (de jure executive), while the Chief Minister is the real executive authority (de facto executive) M. Laxmikanth, Indian Polity, Chapter 30, p.325. Simply put, while all executive actions are taken in the Governor's name, the actual decision-making power rests with the elected Council of Ministers.

The Constitution provides for a Governor for each state, though the 7th Amendment Act of 1956 allows for the appointment of the same person as Governor for two or more states D. D. Basu, Introduction to the Constitution of India, Chapter 23, p.269. At the heart of this constitutional position is Article 163, which mandates a Council of Ministers with the Chief Minister at the head to 'aid and advise' the Governor in the exercise of his functions. While the Governor does possess certain discretionary powers (a unique feature compared to the President), in most matters—including the promulgation of ordinances under Article 213—the Governor is bound to act according to ministerial advice.

Feature	Governor	Chief Minister
Executive Status	Nominal (De Jure)	Real (De Facto)
Role in State	Head of the State	Head of the Government
Accountability	Constitutional Head	Accountable to the Legislature

It is crucial to remember that the Governor serves a dual role: he is the constitutional head of the state and also acts as a vital link or representative of the Central Government. This dual capacity is what makes the position unique and sometimes a subject of constitutional debate.

Sources: Indian Polity, Chapter 30: Governor, p.325; Introduction to the Constitution of India, Chapter 23: The State Executive, p.269

2. The 'Aid and Advice' Principle (Article 163) (intermediate)

In a parliamentary form of government, the Governor serves as the constitutional or nominal head of the state, while the Council of Ministers (CoM) led by the Chief Minister acts as the real executive. This relationship is codified in Article 163 of the Constitution. It mandates that there shall be a Council of Ministers to 'aid and advise' the Governor in the exercise of their functions Laxmikanth, State Council of Ministers, p.329. This means that for the vast majority of executive actions—such as appointing officials or even issuing ordinances—the Governor does not act independently but follows the decisions made by the cabinet.

However, there is a significant constitutional distinction between the Governor and the President. While the President’s discretionary powers are mostly situational, Article 163(1) explicitly recognizes that the Governor has certain functions they can perform in their discretion. If any question arises as to whether a matter falls within the Governor’s discretion, the decision of the Governor is final, and their actions cannot be challenged on the ground that they should have acted on ministerial advice Laxmikanth, State Council of Ministers, p.330. This gives the Governor a wider constitutional latitude than the President of India.

To ensure the smooth functioning of the executive, Article 163(3) provides a shield: the advice tendered by Ministers to the Governor cannot be enquired into by any court. This maintains the confidentiality of the cabinet's decision-making process. The landmark Shamsher Singh case (1974) further clarified that except for specific discretionary areas, the Governor is generally bound by the aid and advice of the Council of Ministers Laxmikanth, State Council of Ministers, p.330.

Comparison: Aid and Advice

Feature	President (Art. 74)	Governor (Art. 163)
Discretionary Language	No explicit mention of acting in discretion.	Explicitly mentions functions performed in discretion.
Finality of Decision	Not applicable (primarily situational).	The Governor's decision on what is discretionary is final.
Nature of Advice	Binding (after one reconsideration).	Generally binding, except in discretionary matters.

Sources: Laxmikanth, M. Indian Polity, State Council of Ministers, p.329-330; Laxmikanth, M. Indian Polity, President, p.198

3. Discretionary Powers: Constitutional vs. Situational (intermediate)

In the Indian parliamentary setup, the Governor is a nominal head, but unlike the President, the Constitution explicitly grants the Governor certain discretionary powers. Under Article 163, there is a Council of Ministers to 'aid and advise' the Governor, but this does not apply to functions where the Governor is required to act in his/her discretion. A unique feature of this office is that if a question arises whether a matter falls within the Governor's discretion, the Governor's decision is final and cannot be questioned in court Indian Polity, M. Laxmikanth(7th ed.), State Council of Ministers, p.330. This discretion is broadly divided into two categories: Constitutional and Situational.

Constitutional Discretion refers to powers expressly mentioned in the text of the Constitution. For instance, the Governor acts on his/her own judgment when reserving a bill for the President’s consideration or recommending the imposition of President's Rule (Article 356) in the state Indian Polity, M. Laxmikanth(7th ed.), Governor, p.321. Conversely, Situational Discretion is not written in the Constitution but emerges from political exigencies. This includes the appointment of a Chief Minister when no party has a clear majority, or the dismissal of the Council of Ministers if they fail to prove their majority in a floor test Introduction to the Constitution of India, D. D. Basu (26th ed.), The State Executive, p.275.

It is a common misconception that all executive actions are discretionary. For example, the ordinance-making power (Article 213) is NOT a discretionary power; the Governor must act on the aid and advice of the ministers to promulgate an ordinance. This ensures that while the Governor has 'room to maneuver' during constitutional crises, they remain a constitutional head during the normal course of administration.

Type of Discretion	Source	Key Examples
Constitutional	Explicitly stated in the Constitution.	Reserving bills; reporting failure of constitutional machinery; Sixth Schedule royalties.
Situational	Derived from political circumstances.	Appointing CM (hung assembly); dismissing CoM; dissolving the Assembly.

Sources: Indian Polity, M. Laxmikanth(7th ed.), Governor, p.321; Introduction to the Constitution of India, D. D. Basu (26th ed.), The State Executive, p.275; Indian Polity, M. Laxmikanth(7th ed.), State Council of Ministers, p.330

4. Legislative Procedures of the State Legislature (basic)

To understand how a State Legislature functions, we must first recognize that the Governor, while not a member of either House, is an integral part of the State Legislature. This role is primarily administrative and procedural, ensuring the legislative machinery runs smoothly. The Governor’s legislative powers are exercised in three main stages: summoning, proroguing, and dissolving the House M. Laxmikanth, State Legislature, p.340.

The Governor has the authority to summon (call) the Houses of the State Legislature to meet. However, the Constitution mandates a strict timeline: there must not be a gap of more than six months between the last sitting of one session and the first sitting of the next D. D. Basu, Introduction to the Constitution of India, p.245. Once the business of a session is complete, the Governor issues an order for prorogation, which terminates the session. It is vital to distinguish this from an adjournment, which only pauses a daily sitting and is handled by the Speaker or Chairman, not the Governor D. D. Basu, Introduction to the Constitution of India, p.246.

One of the most significant legislative powers is the ordinance-making power under Article 213. This allows the Governor to promulgate laws when the State Legislature is not in session to handle urgent matters. While an ordinance has the same force and effect as an Act passed by the Legislature, it is not a discretionary power. The Governor can only issue or withdraw an ordinance on the aid and advice of the Council of Ministers headed by the Chief Minister M. Laxmikanth, Ordinance-Making Power of the President, p.198.

Term	Authority	Effect
Adjournment	Presiding Officer (Speaker/Chairman)	Suspends work in a sitting for a few hours or days.
Prorogation	Governor	Ends a session of the House.
Dissolution	Governor	Ends the very life of the Assembly (necessitating fresh elections).

Sources: M. Laxmikanth, Indian Polity, State Legislature, p.340; D. D. Basu, Introduction to the Constitution of India, The Union Legislature, p.245-246; M. Laxmikanth, Indian Polity, Ordinance-Making Power of the President, p.198

5. President's vs. Governor's Ordinance Power (intermediate)

In our constitutional scheme, the Executive is occasionally granted a legislative role to bridge gaps when the law-making body is not available. This is the Ordinance-making power. Under Article 123 (for the President) and Article 213 (for the Governor), this power is designed to handle unforeseen or urgent matters that cannot wait for a formal legislative session. It is important to remember that an Ordinance is not a parallel power of legislation; it is a substitute for an Act of the Legislature, having the same force and effect Introduction to the Constitution of India, D. D. Basu (26th ed.), The State Legislature, p.291.

While this power seems broad, it is strictly bound by constitutional guardrails. First, the Governor can only issue an Ordinance when the State Legislature is in recess (either one House in a bicameral system or the sole House in a unicameral system). Second, and most crucially for your exams, this is not a discretionary power. The Governor must act only on the aid and advice of the Council of Ministers headed by the Chief Minister. The Governor must be personally 'satisfied' that circumstances exist for immediate action, but this satisfaction is legally based on ministerial advice Introduction to the Constitution of India, D. D. Basu (26th ed.), The State Legislature, p.292.

There is also a strict expiry timeline. Once the Legislature reassembles, the Ordinance must be laid before it. It ceases to operate six weeks from the date of reassembly unless the Legislature passes a resolution disapproving it earlier. Furthermore, the Governor's power is co-extensive with the State Legislature's power; he cannot make an Ordinance on a subject that the State Legislature itself cannot legislate upon (Subjects in List II and List III) Introduction to the Constitution of India, D. D. Basu (26th ed.), The State Legislature, p.291.

Feature	President (Article 123)	Governor (Article 213)
Scope	Union List and Concurrent List.	State List and Concurrent List.
Advice	Bound by Union Cabinet advice.	Bound by State Council of Ministers advice.
Presidential Instruction	Not applicable.	Requires President's instruction in cases where a similar Bill would need President's assent.

Sources: Introduction to the Constitution of India, D. D. Basu (26th ed.), The State Legislature, p.291-292

6. Article 213: Deep Dive into Ordinance Making (exam-level)

Article 213 of the Indian Constitution provides the Governor with a unique and powerful tool: the ordinance-making power. This is not a regular legislative power but an emergency provision designed to handle unforeseen or urgent situations when the State Legislature is not in session. Just as the President acts under Article 123, the Governor can promulgate an ordinance when the Legislative Assembly (in unicameral states) or either House of the Legislature (in bicameral states) is not in session D. D. Basu, Introduction to the Constitution of India, p.291. It is vital to remember that an ordinance has the same force and effect as an Act passed by the legislature itself, meaning it is law in every sense while it remains in force.

A common misconception is that this is a discretionary power. On the contrary, the Governor cannot issue an ordinance at his own whim; he must act only on the aid and advice of the Council of Ministers headed by the Chief Minister. The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action D. D. Basu, Introduction to the Constitution of India, p.292. Furthermore, this power is co-extensive with the legislative powers of the State Legislature. This means the Governor can only make ordinances on subjects found in the State List (List II) and the Concurrent List (List III). An ordinance can be retrospective, and it can even modify or repeal an existing Act or alter tax laws; however, it cannot be used to amend the Constitution Laxmikanth, M., Indian Polity, p.198.

The life of an ordinance is strictly limited. Every ordinance must be laid before the State Legislature once it reassembles. If the legislature takes no action, the ordinance automatically expires six weeks after the date of reassembly D. D. Basu, Introduction to the Constitution of India, p.291. If the legislature passes a resolution disapproving it before those six weeks, it ceases to operate immediately. Additionally, the Governor has the authority to withdraw the ordinance at any time, acting on the advice of the cabinet.

Feature	Details
Nature of Power	Executive-led legislation; NOT a discretionary power.
Timing	Only when the Legislature (or one House in bicameral states) is in recess.
Validity	Same force as an Act; expires 6 weeks after reassembly.
Limitations	Cannot amend the Constitution; limited to Lists II and III.

Sources: Introduction to the Constitution of India, D. D. Basu, The State Legislature, p.291-292; Indian Polity, M. Laxmikanth, President, p.198

7. Judicial Limits and the 'Satisfaction' Clause (exam-level)

At the heart of the Governor’s ordinance-making power under Article 213 lies the phrase: "if at any time... the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action." While this sounds like a personal choice, it is a well-settled constitutional principle that this 'satisfaction' is not the Governor’s individual discretion. Instead, the Governor must act strictly on the aid and advice of the Council of Ministers Indian Polity, M. Laxmikanth, Chapter 18, p. 198. This power is an extraordinary legislative tool meant for urgent situations when the State Legislature is not in session, and it carries the same legal weight as an Act passed by the Assembly.

Historically, there was a debate over whether the courts could question the 'satisfaction' of the Governor. While the 38th Amendment Act (1975) attempted to make this satisfaction final and beyond judicial review, the 44th Amendment Act (1978) reversed this, restoring the principle established in the Cooper case (1970). Today, the Governor's satisfaction can be challenged in court if it is mala fide (demonstrated bad faith)—for example, if the government deliberately prorogues the legislature just to bypass a vote and pass a controversial law via ordinance Introduction to the Constitution of India, D. D. Basu, The Union Executive, p. 221.

The most significant judicial limit on this power was established in the landmark D.C. Wadhwa vs. State of Bihar (1986). The Supreme Court observed that the Bihar Governor had promulgated 256 ordinances between 1967 and 1981, many of which were kept alive for years through re-promulgation without ever being placed before the legislature Indian Polity, M. Laxmikanth, Landmark Judgements, p. 630. The Court ruled that such mechanical re-promulgation is a "fraud on the Constitution" and an abuse of power, as it allows the executive to usurp the law-making function of the legislature Introduction to the Constitution of India, D. D. Basu, The Union Executive, p. 220.

Sources: Indian Polity, M. Laxmikanth, Chapter 18: President, p.198; Indian Polity, M. Laxmikanth, Landmark Judgements and Their Impact, p.630; Introduction to the Constitution of India, D. D. Basu, The Union Executive, p.220-221

8. Solving the Original PYQ (exam-level)

This question tests your ability to integrate the legislative powers of the executive with the parliamentary principle of aid and advice. Having just studied Article 213, you know that the Governor acts as the constitutional head of the state. The building blocks here are the conditions of urgency and recess of the legislature. While the power to issue an ordinance is a potent tool to handle unforeseen situations when the state legislature is not in session (Option C), it is never an independent act of the Governor. It mirrors the legislative process where the executive (Council of Ministers) is responsible to the legislature; hence, the Governor must act only on the aid and advice of the Council of Ministers.

To arrive at the correct answer, you must identify the incorrect statement. If you recall the core constitutional principle, the Governor has no discretionary power in the matter of ordinances (Option A); he is the mouthpiece of the state cabinet. Therefore, Option (D) is the correct answer because it falsely claims that aid and advice is not required. In reality, the Governor cannot issue or withdraw an ordinance (Option B) unless the cabinet advises him to do so. This reflects the collective responsibility of the ministers to the State Assembly, ensuring that no law is made without the backing of the elected executive.

A common trap in UPSC is the confusion between the Governor's constitutional discretion and his legislative functions. Because the Governor has more discretionary powers than the President (like under Article 356 or reserving bills), students often mistakenly think ordinance-making is one of them. Remember, an ordinance has the same force and effect as an Act of the legislature; since the Governor cannot pass a law alone, he cannot issue an ordinance alone either. Always look for this link between legislative character and ministerial advice as noted in Indian Polity, M. Laxmikanth.