The Governor's legislative powers, including ordinance issuance, are exercised under specific constitutional conditions.

Q.12 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.

Model Answer:

Introduction

The Governor of a state in India holds significant legislative powers, including the authority to promulgate ordinances when the state legislature is not in session. This power is exercised based on the aid and advice of the Council of Ministers, except in certain discretionary situations.

Body

Essential Conditions for Exercise of Legislative Powers by the Governor:

  • Governor's Discretion to Seek Clarification: The Governor can seek clarification from the Council of Ministers if there is ambiguity in the advice provided. This ensures that the Governor's actions are well-informed and in the state's best interest.
  • Governor's Personal Satisfaction: The Governor must be personally satisfied that circumstances necessitate immediate action, justifying the promulgation of an ordinance. This personal satisfaction is crucial to prevent misuse of the ordinance-making power.

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Constitutional Provisions and Judicial Interpretations:

  • Article 213 of the Indian Constitution empowers the Governor to promulgate ordinances. However, this power is not absolute and is subject to judicial review. For instance, in the case of D.C. Wadhwa vs. State of Bihar (1987), the Supreme Court held that re-promulgation of ordinances without placing them before the legislature is unconstitutional.

Legality of Re-promulgation of Ordinances:

  • Re-promulgation of ordinances by the Governor without placing them before the legislature undermines the legislative process and violates the principle of separation of powers. The Supreme Court in the Krishna Kumar Singh vs. State of Bihar (2017) case reiterated that ordinances are temporary laws and must be placed before the legislature for approval.

Reasons Behind Re-promulgation:

  • Lack of Legislative Time: Often, the legislature may not have sufficient time to deliberate on all ordinances, leading to their re-promulgation.
  • Political Expediency: Sometimes, ordinances are re-promulgated to bypass legislative scrutiny and expedite certain decisions.

Negative Implications of Re-promulgation:

  • Erosion of Democratic Principles: Re-promulgation without legislative approval can erode democratic principles and lead to executive overreach. For example, repeated re-promulgation of ordinances in Bihar led to public unrest and questions about the executive's accountability.
  • Undermining Legislative Authority: It diminishes the role of the legislature, which is the primary law-making body, thereby weakening the checks and balances in governance.

Steps to Reduce Re-promulgation:

  • Timely Legislative Sessions: Ensuring regular and timely sessions of the legislature can reduce the need for re-promulgation.
  • Enhanced Legislative Scrutiny: Strengthening legislative committees to scrutinise ordinances can ensure that they are debated and approved promptly.

Importance of Supreme Court Guidelines:

  • The Supreme Court's guidelines in cases like D.C. Wadhwa and Krishna Kumar Singh are crucial in curbing the practice of re-promulgation. These guidelines emphasise the temporary nature of ordinances and the necessity of legislative approval, thereby promoting transparency and accountability.

Conclusion

In conclusion, the Governor plays a vital role in law-making through ordinances, especially in urgent situations. However, the practice of re-promulgation without legislative approval poses significant challenges to democratic governance. Ensuring transparency, accountability, and adherence to constitutional provisions can mitigate these issues and enhance the role of the Governor in a positive and constructive manner

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