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. (Answer in 250 words) 15M
India does not adhere to a strict separation of powers, which enables the President and Governors to exercise legislative power under Article 123/213 of the Constitution by issuing ordinances, subject to constitutional conditions.
Under Article 213, the following essential conditions are applicable:
- Extraordinary Circumstances: The Governor promulgates ordinances when there are extraordinary circumstances and the State Legislature/s are not in session. The Governor must be satisfied that immediate action is necessary.
- Presentation to the Legislature: The ordinances must be laid before the State Legislative Assembly and Legislative Council (if applicable). This ensures that the legislature has the opportunity to review and deliberate upon the ordinances.
- Time Limit: The ordinance ceases to operate either after six weeks from the reassembly of the Legislature or if a resolution disapproving the ordinance is passed. This ensures that the legislature has the power to terminate or modify the ordinance.
- Council of Ministers’ Involvement: The ordinances issued under Article 213 are enacted at the behest of the Council of Ministers and are not based on the discretionary power of the Governor. This means that the Governor acts on the aid and advice of the Council of Ministers in promulgating the ordinances.
The illegality of re-promulgation has been addressed in significant court cases, such as D.C. Wadhwa v State of Bihar and Krishna Kumar Singh vs. State of Bihar, which have established important principles.
- In the case of D.C. Wadhwa v State of Bihar, it was observed that the mechanical re-promulgation of ordinances without being approved by the legislature amounts to a colorable exercise of power by the executive. The court ruled that such re-promulgation of ordinances is unconstitutional.
- Similarly, in the case of Krishna Kumar Singh vs. State of Bihar, it was recognized that re-promulgation undermines the established parliamentary legislative procedures, thereby violating the Indian Constitution. The court held that the failure to place an ordinance before the legislature constitutes an abuse of power and a fraud on the Constitution.
Satisfaction of the President or Governor while issuing an ordinance is not immune from judicial review. This means that the court has the authority to review the decision-making process and ensure that the satisfaction of the President or Governor is not arbitrary or based on improper considerations.
Reasons for Re-Promulgation
In certain exceptional circumstances, re-promulgation of ordinances may be justified, as outlined in the D.C. Wadhwa case:
- Existing Legislative Business: If the matter could not be addressed during the existing legislative session due to ongoing legislative business, re-promulgation may be considered necessary.
- Emergent Situations: Re-promulgation may be justified in situations where there is an urgent and emergent need for the ordinance to remain in force.
Regarding the legal standpoint, it is important to note that the Constitution does not explicitly prohibit the re-promulgation of ordinances. The absence of an express prohibition means that re-promulgation is not explicitly forbidden by the Constitution. However, it is essential to consider the constitutional principles of democratic governance, separation of powers, and the need for legislative scrutiny.
While the Constitution does not expressly prohibit re-promulgation, the repeated re-promulgation of ordinances without proper legislative scrutiny has been criticized by the courts. The Supreme Court of India, in the D.C. Wadhwa case, held that re-promulgation of ordinances without the legislature’s consideration is a fraud on the Constitution and an abuse of power.
Despite the rulings of the Supreme Court, both the central government and state governments have continued the practice of re-promulgation. An example of this is the recent case of the Kerala government, which sent 11 ordinances for re-promulgation. Additionally, the central government re-promulgated the Land Acquisition Act in 2014. This highlights the ongoing need for greater clarity and scrutiny concerning the misuse of re-promulgation of ordinances.
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