Q. Discuss the essential conditions for exercise of the legislative powers by Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature.

Model Answer: 

Governor’s Legislative Powers and Ordinance Re-promulgation

The Governor’s power to promulgate ordinances is a crucial constitutional provision that allows for swift legislative action when immediate measures are necessary. Article 213 of the Constitution outlines the essential conditions for the exercise of this legislative power:

• The State Legislature must not be in session.
• The Governor must be satisfied that circumstances exist which render immediate action necessary.
• The ordinance must not contain provisions that would be invalid if enacted in an Act of the State Legislature.
• Presidential approval is required for ordinances that would need the President’s consideration if they were bills.

These conditions ensure that the Governor’s legislative power is used judiciously and does not encroach upon the legislature’s domain. For instance, during natural disasters (e.g., floods in Assam) or public health emergencies (e.g., COVID-19 outbreak), Governors have promulgated ordinances to address urgent needs.

Legality of Ordinance Re-promulgation

Regarding the re-promulgation of ordinances, the Supreme Court’s landmark judgment in D.C. Wadhwa vs. State of Bihar (1987) addressed its legality. The court held that:

• Re-promulgation of ordinances is a fraud on the Constitution and subverts democratic legislative processes.
• It bypasses legislative scrutiny and accountability.
• The practice violates the spirit of separation of powers.

The court emphasized that ordinances must be placed before the legislature for consideration. Re-promulgation without doing so is deemed unconstitutional, as it allows the executive to indefinitely circumvent the legislative process. However, in exceptional circumstances, such as when the legislature is prorogued shortly after convening, a single re-promulgation might be permissible if absolutely necessary.

To maintain constitutional integrity, Governors must:

• Use ordinance-making power sparingly and only when absolutely necessary.
• Ensure ordinances are promptly placed before the legislature when it reconvenes.
• Avoid repeated re-promulgation as a means of bypassing legislative scrutiny.

Conclusion: Governors’ legislative powers, while necessary for emergencies, must be exercised cautiously to maintain the balance between executive action and legislative supremacy.