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.
Introduction
The Governor, as the constitutional head of a state, exercises legislative powers under Article 213 of the Indian Constitution, primarily through the ordinance-making power. This power is meant to address urgent legislative needs when the state legislature is not in session. However, the re-promulgation of ordinances without legislative approval raises questions about its legality and adherence to constitutional principles.
Key Dimensions of Governor's Legislative Powers
Essential Conditions for Exercise of Legislative Powers by the Governor
1. Ordinance-Making Power (Article 213)
The Governor can promulgate ordinances under Article 213, but this power is subject to specific conditions:
- Legislature not in session: Ordinances can only be issued when either or both Houses of the state legislature are not in session.
- Immediate necessity: The Governor must be satisfied that circumstances exist requiring immediate action.
- Example: Ordinances issued during emergencies like natural disasters or pandemics.
- Advice of the Council of Ministers: The Governor acts on the aid and advice of the Council of Ministers, as per Article 163.
- Judgment: In Shamsher Singh v. State of Punjab (1974), the Supreme Court clarified that the Governor is bound by ministerial advice.
2. Assent to Bills
The Governor can:
- Give assent to a bill.
- Withhold assent.
- Reserve the bill for the President’s consideration (Article 200).
3. Reservation of Bills for the President
Certain bills, such as those derogating from the powers of the High Court, must be reserved for the President’s assent.
Legality of Re-Promulgation of Ordinances
1. Constitutional Provisions and Limitations
- Article 213(2): An ordinance ceases to operate six weeks after the legislature reassembles unless approved by it.
- Re-promulgation: Re-issuing an ordinance without placing it before the legislature undermines the legislative process and violates the principle of separation of powers.
2. Judicial Pronouncements
- D.C. Wadhwa v. State of Bihar (1987):
- The Supreme Court held that re-promulgation of ordinances is unconstitutional unless exceptional circumstances exist.
- It emphasized that ordinances are temporary measures and cannot be used to bypass the legislature.
- Krishna Kumar Singh v. State of Bihar (2017):
- The Court ruled that re-promulgation without legislative approval is a fraud on the Constitution.
- It also stated that ordinances must be laid before the legislature to ensure accountability.
3. Concerns with Re-Promulgation
- Erosion of legislative authority: Re-promulgation bypasses the legislature, undermining its role as the primary law-making body.
- Violation of democratic principles: It concentrates excessive power in the executive, disrupting the balance of power.
- Lack of accountability: Re-promulgation avoids legislative scrutiny, reducing transparency.
Way Forward
- Strict Adherence to Judicial Guidelines: The principles laid down in D.C. Wadhwa and Krishna Kumar Singh must be followed to prevent misuse of ordinance-making powers.
- Legislative Oversight: Ordinances should be mandatorily placed before the legislature within the stipulated time to ensure accountability.
- Constitutional Amendments: Introduce provisions to explicitly limit the scope of re-promulgation.
- Strengthening Federalism: Governors must act in a non-partisan manner, respecting the spirit of cooperative federalism.
Conclusion
The ordinance-making power of the Governor is an exceptional tool meant for urgent legislative needs, not a substitute for regular law-making. The re-promulgation of ordinances without legislative approval undermines constitutional principles and democratic accountability. Adherence to judicial guidelines and legislative oversight is essential to uphold the sanctity of the Constitution and the rule of law.