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. (UPSC 2022, 15 Marks, )

Introduction

The Indian Polity is governed by a set of rules and regulations that define the powers and responsibilities of various institutions and individuals. The Governor, as an important constitutional authority, holds legislative powers and is responsible for the smooth functioning of the state government.

Explanation

Essential Conditions for Exercise of Legislative Powers by the Governor

  • Article 213: The Governor is empowered under Article 213 to promulgate ordinances when the state legislature is not in session.
  • Conditions for Exercising Power:
    • Legislature not in session: The Governor can only issue ordinances when both houses of the state legislature are not in session. This ensures that the Governor's legislative power is not in conflict with the regular legislative process.
    • Immediate Action: The Governor must be satisfied that immediate action is necessary on a particular issue. This satisfaction must be based on circumstances requiring prompt intervention, and it is not merely discretionary but based on real urgency.
    • Binding by Cabinet: The ordinance-making power is to be exercised based on the advice of the Council of Ministers headed by the Chief Minister. The Governor cannot act unilaterally in this regard.
    • Subject to Constitutional Limitations: An ordinance can only be issued on matters on which the state legislature has the competence to legislate. Ordinances cannot contravene fundamental rights or constitutional provisions.
  • Laying Before Legislature: Every ordinance must be laid before the legislative assembly when it reassembles, and if not approved within six weeks of the assembly reconvening, it lapses .

Legality of Re-promulgation of Ordinances by the Governor

  • Supreme Court's Stance:
    • The Supreme Court in D.C. Wadhwa Case (1987) ruled that the practice of re-promulgating ordinances without presenting them before the legislature is unconstitutional. The court held that re-promulgation amounts to bypassing the legislative authority and is a violation of the Constitution.
    • No Substitute for Legislation: The judgment made it clear that ordinances are temporary measures meant to address emergencies. Re-promulgation of ordinances as a way to avoid legislative scrutiny undermines the separation of powers.
  • Checks on Re-promulgation:
    • Mandatory Presentation: The Constitution mandates that ordinances be placed before the legislature when it reconvenes. If not approved within the stipulated time, the ordinance ceases to operate.
    • Judicial Review: The courts can review the satisfaction of the Governor in issuing ordinances to ensure there is no malafide intention behind re-promulgation.

Conclusion

The exercise of legislative powers by the Governor is subject to certain essential conditions, including the constitutional mandate, aid and advice of the Council of Ministers, and discretionary powers. Re-promulgation of ordinances without placing them before the Legislature is considered unconstitutional and undermines the principles of democratic accountability and separation of powers.