Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (2022, 15 Marks)

Model Answer

The Governor is a part of the State Legislature (Article 168). Besides summoning, proroguing and dissolving the House (Article 174) and acting on Bills (Article 200), the Governor can make law through ordinances under Article 213, like the President under Article 123.

Essential Conditions for Ordinance-Making

• Legislature not in session: The Assembly (or both Houses, where a Council exists) must not be in session.
• Need for immediate action: The Governor must be satisfied that circumstances require it.
• Aid and advice: The power is used on the aid and advice of the Council of Ministers (Article 163).
• Legislative competence: It can cover only matters on which the State Legislature can make laws. It has the same force and limits as a State Act.
• President’s instructions: Needed where a similar Bill would require the President’s previous sanction or reservation.
• Limited life: It must be laid before the Legislature. It lapses six weeks after reassembly, unless disapproved earlier.

Legality of Re-promulgation

• D.C. Wadhwa v. State of Bihar (1987): Bihar kept re-issuing ordinances for years without placing them before the Assembly. The Supreme Court called this a “fraud on the Constitution”.
• Krishna Kumar Singh v. State of Bihar (2017): A seven-judge bench held that re-promulgation defeats the constitutional scheme. Failure to lay an ordinance is a serious constitutional breach.
• The Governor’s satisfaction is open to judicial review.
• Hence, re-promulgation without legislative scrutiny is unconstitutional.

Conclusion

Ordinances are an emergency tool, not a parallel path of law-making. Placing every ordinance before the House upholds legislative supremacy and constitutional morality.

Related PYQs

• Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed? (2015)
• Account for the legal and political factors responsible for the reduced frequency of using Article 356 by the Union Governments since mid 1990s. (2023)
• Do you think that the constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain. (2019)

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