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Question

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.

This question was previously asked in
UPSC CSE 2022 (Prelims) CSAT Previous Year Paper (05-June-2022)

The Governor's power to promulgate ordinances, as enshrined in Article 213 of the Indian Constitution, is a significant legislative power, enabling the state executive to act swiftly when the legislature is not in session.

The essential conditions for the exercise of this legislative power are:

  1. Legislature not in session: The most fundamental condition is that both Houses of the State Legislature (or one House where there's a unicameral legislature) must not be in session. An ordinance cannot be promulgated when the legislature is capable of enacting laws.

  2. Governor's Satisfaction: The Governor must be "satisfied that circumstances exist which render it necessary for him to take immediate action." While this 'satisfaction' is subjective on the surface, the Supreme Court has clarified that it must be based on objective facts and is subject to judicial review, preventing arbitrary use.

  3. Competence to Legislate: The subject matter of the ordinance must fall within the legislative competence of the state legislature, meaning the state can make a law on that subject.

  4. Limited Duration: An ordinance has the same force and effect as an Act of the Legislature but is temporary. It must be laid before the State Legislature when it reassembles and ceases to operate six weeks from the reassembly, or earlier if disapproved by the Legislature.

The legality of re-promulgation of ordinances by the Governor without placing them before the Legislature has been a contentious issue and is largely deemed unconstitutional. The practice involves a Governor issuing successive ordinances on the same subject, thereby bypassing legislative scrutiny and extending their life indefinitely.

The Supreme Court, in the landmark case of D.C. Wadhwa vs. State of Bihar (1987), strongly condemned this practice, calling it a "subversion of the democratic process" and a "fraud on the Constitution." The Court held that ordinance-making power is meant for extraordinary circumstances, not as a substitute for the normal legislative process. This position was reaffirmed and strengthened in Krishna Kumar Singh vs. State of Bihar (2017), where the Court categorically ruled that re-promulgation of ordinances without legislative approval is unconstitutional and that the original ordinance would automatically lapse if not placed before the legislature. Such re-promulgation undermines legislative supremacy and the principle of separation of powers.

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