The exercise of legislative powers by the Governor requires adherence to essential conditions, such as constitutional mandates and procedural norms. However, the legality of re-promulgating ordinances without legislative scrutiny raises concerns about circumventing democratic processes, sparking debates on the balance between executive authority and constitutional principles in governance.
UPSC Mains General Studies Paper – 2 Mains 2022
UPSC Mains Civil Services IAS Exam Question Paper – 2022
Approach
- Introduce with emphasising the role and power of the Governor with legislative on promulgation ordinance.
- Describe the valid ground, where the Governor perform the making of promulgation ordinances.
- Briefly deal with the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature.
- Accordingly conclude it.
Answer
Introduction
The Constitution of India vests the legislative powers of the State in the State Legislature, which consists of the Governor and two Houses, i.e., the Legislative Assembly and the Legislative Council (wherever it exists). The Governor is an integral part of the legislative process and exercises certain powers in this regard. However, the exercise of these powers is subject to certain essential conditions.
The essential conditions for the exercise of legislative powers by the Governor are:
- The Governor can only act on the advice of the Council of Ministers, headed by the Chief Minister, and is bound by such advice.
- The Governor can only promulgate an ordinance when both Houses of the Legislature are not in session, and there is an urgent need to make a law.
- The Governor can only promulgate an ordinance on a subject that falls within the legislative competence of the State Legislature.
- The Governor cannot promulgate an ordinance that goes against the provisions of the Constitution.
- 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
- 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
- he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
- 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.
- An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance
- 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
- may be withdrawn at any time by the Governor.
- 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 State 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 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 by the Governor without placing them before the Legislature is a controversial issue. The Constitution does not prohibit re-promulgation of ordinances, but it is against the spirit of the Constitution as it undermines the role of the Legislature in the law-making process.
- In the case of D.C. Wadhwa v. State of Bihar (AIR 1987 SC 579), the Supreme Court held that re-promulgation of ordinances is a fraud on the Constitution and an abuse of power. The Court observed that if an ordinance is promulgated repeatedly without being placed before the Legislature, it would amount to the Governor legislating without the authority of the Legislature, which is contrary to the basic principle of separation of powers.
- However, in the case of Krishna Kumar Singh v. State of Bihar (AIR 2017 SC 4324), the Supreme Court held that re-promulgation of an ordinance is not per se illegal. The Court held that the power of the Governor to promulgate an ordinance is a legislative power, and re-promulgation is only an extension of the same power. However, the Court cautioned that the power to re-promulgate should not be used as a substitute for the power to legislate.
Conclusion
Indian Constitution has provided for the separation of powers among the legislature, executive, and judiciary where enacting laws is the function of the legislature. Hence, if certain circumstances arise, then the Governor can re-promulgate the ordinances after giving answers to some questions of the legislature like about their urgency and absolute needs.
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