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: 

In a democratic system, the Governor is the constitutional head of a state, representing the President of the country.

The Governor is responsible for the smooth functioning of the state government, and in certain circumstances, exercises legislative powers.

The legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature can be a matter of debate.

In order to understand these aspects, let us first discuss the essential conditions for the exercise of legislative powers by the Governor and then analyze the legality of re-promulgation of ordinances.

Essential Conditions for Exercise of Legislative Powers by Governor:

When Legislature is not in session: The Governor may exercise legislative powers through the promulgation of ordinances when the state legislature is not in session. This is done to address urgent matters that require immediate legislative action.

Emergencies: In cases of emergencies or unforeseen circumstances, the Governor may exercise legislative powers to protect the interests of the state and its citizens. This could include situations like natural disasters, public unrest, or other crises.

Presidential Assent: The Governor must have the assent of the President of the country before promulgating an ordinance. This ensures that the ordinance is in line with the central government’s policies and the Constitution.

Compliance with the Constitution: The Governor must exercise legislative powers in accordance with the provisions of the Constitution. Any ordinance promulgated by the Governor must not contravene any constitutional provisions or fundamental rights.

Legality of Re-promulgation of Ordinances by the Governor without placing them before the Legislature:

The re-promulgation of ordinances by the Governor without placing them before the Legislature has been a contentious issue in the Indian legal context.

According to Article 213 of the Indian Constitution, an ordinance promulgated by the Governor has the same force and effect as an Act of the state legislature.

However, it is subject to the following conditions:

Every ordinance must be laid before the state legislature as soon as it reassembles.

The ordinance will cease to operate six weeks after the reassembly of the state legislature or if it is disapproved by the state legislature before the expiry of six weeks.

Re-promulgation of ordinances has been criticized for potentially bypassing the legislative process and undermining the authority of the state legislature.

In the 1986 Supreme Court case of D.C. Wadhwa v. State of Bihar, the Court held that the re-promulgation of ordinances without placing them before the state legislature is unconstitutional and amounts to a subversion of the democratic process.

The Court emphasized that the power to promulgate ordinances is an extraordinary power and should be used sparingly, only in cases of urgency or emergency.

It should not be used as a substitute for the regular legislative process.

Re-promulgation without placing the ordinance before the legislature is a violation of the Constitution and can be struck down by the courts.

In conclusion, the Governor can exercise legislative powers through the promulgation of ordinances under certain circumstances, such as when the legislature is not in session or during emergencies.

However, the re-promulgation of ordinances without placing them before the state legislature has been held to be unconstitutional, as it undermines the authority of the legislature and subverts the democratic process.