Q.Discuss the essential conditions for the 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
View this Question In PYQ RealmIntroduction
Under Article 153 of the Indian Constitution, the Governor is appointed by the President as the executive head of a state. Serving as a vital link between the Union and the state, the Governor holds both executive and legislative powers. While the legislature is the primary law-making organ in a parliamentary setup, the Governor is vested with legislative authority under specific circumstances. Notably, Article 213 of the Constitution empowers the Governor to promulgate ordinances when the state legislature is not in session.
graph TD A["Governor's Legislative Powers"] --> B["Summoning & Proroguing the Legislature"] A --> C["Assent to Bills"] A --> D["Address to the Legislature"] A --> E["Ordinance-Making Power"] A --> F["Recommendation for Certain Bills"]
Body
Essential Conditions for Exercising Legislative Power:
- Ministerial Advice: The Governor must act on the aid and advice of the Council of Ministers headed by the Chief Minister, rather than acting on personal discretion.
- Summoning, Proroguing, and Dissolution: The Governor can summon, prorogue, or dissolve the state legislative assembly, strictly on the Chief Minister's advice.
- Addressing the House: The Governor addresses the state legislature at the start of the first session of each year and immediately after general elections.
- Assent to Legislation: The Governor must provide assent to bills passed by the state legislature within a reasonable period.
- Reservation of Bills: The Governor can reserve specific bills for the President's consideration, especially those that conflict with constitutional provisions.
- Promulgation of Ordinances: Under Article 213, the Governor can issue ordinances when the assembly is recessed, provided urgent action is required.
Essential Conditions for Ordinance-Making:
- Jurisdiction: The Governor can only legislate on matters within the State List or Concurrent List. Example: In 2020, the UP Governor promulgated an ordinance to regulate private universities under Article 213.
- Recess of Legislature: Ordinances can only be issued when the legislative assembly is not in session. Example: In 2018, the Tamil Nadu Governor issued an ordinance to regularize unauthorized building constructions during a legislative recess.
- Legislative Approval: The ordinance must be approved by the state legislature within six weeks of its reassembly, failing which it lapses. Example: In 2021, the Kerala Police Act amendment ordinance was withdrawn following public protests without being tabled.
Legality of Re-promulgation of Ordinances:
The Constitution does not explicitly permit the re-promulgation of ordinances without placing them before the legislature. The Supreme Court has repeatedly criticized this practice:
- D.C. Wadhwa v. State of Bihar (1987): The SC ruled that re-promulgating ordinances without legislative scrutiny is a "fraud on the Constitution" and subverts democratic legislative processes, as law-making power belongs to the legislature, not the executive.
- Krishna Kumar Singh v. State of Bihar (2017): The SC reiterated that re-promulgation is a constitutional fraud and cannot serve as a substitute for regular law-making.
- State of Rajasthan v. Union of India (1977): The SC held that ordinance-making is an emergency power and should not bypass the legislature.
Conclusion
The Governor's legislative powers are bound by constitutional limits. Re-promulgating ordinances without legislative tabling undermines democratic deliberation and the separation of powers.