Que. 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.
राज्यपाल द्वारा विधायी शक्तियों के प्रयोग की आवश्यक शर्तों का विवेचन कीजिए। विधायिका के समक्ष रखे बिना राज्यपाल द्वारा अध्यादेशों के पुनः प्रख्यापन की वैधता की विवेचना कीजिए।
Structure of the Answer
(i) Introduction: Introduce the Governor’s “legislative powers” within the constitutional framework and highlight the “issue” of re-promulgation of ordinances.
(ii) Main Body: Explain the “conditions” for exercising the Governor’s legislative powers, and the “legal scrutiny” of re-promulgation of ordinances without legislative approval.
(iii) Conclusion: Summarize the constitutional intent behind ordinance-making powers and emphasize the need for “legislative primacy” and judicial oversight.
Introduction
The Governor’s power to issue ordinances under Article 213 of the Constitution must meet specific “constitutional conditions.” The issue of re-promulgation of ordinances, bypassing the Legislature, poses serious “legal” and “democratic” concerns in India’s federal setup.
Conditions for the Governor’s Legislative Powers
The exercise of ordinance-making power by the Governor is “conditional” and subject to constitutional limits.
(i) Legislature Not in Session: The Governor can issue ordinances only when the “State Legislature” is not in session, ensuring ordinances are temporary and used when normal legislative means are unavailable.
(ii) Urgency of Immediate Action: Ordinances must address matters of “immediate necessity.” The urgency must justify bypassing the Legislature to prevent “public harm” or legal vacuum.
(iii) Governor’s Satisfaction: The Governor’s satisfaction regarding the need for an ordinance is subjective but open to “judicial review” to prevent “arbitrary” or politically motivated decisions.
(iv) Advice of Council of Ministers: The Governor acts on the advice of the “Council of Ministers,” ensuring that ordinance-making remains a collective executive decision and subject to political accountability.
(v) Ordinance Duration: Ordinances are temporary measures and must be laid before the Legislature within “six weeks” of its next session, ensuring the primacy of the Legislature.
Legality of Re-promulgation of Ordinances
Re-promulgation of ordinances without presenting them to the Legislature has been criticized for undermining “democratic processes” and violating constitutional provisions.
(i) Judicial Intervention on Re-promulgation: In “Krishna Kumar Singh v. State of Bihar” (2017), the Supreme Court held that re-promulgation without legislative approval is “unconstitutional” as it bypasses legislative authority and weakens the rule of law.
(ii) Legislative Scrutiny Avoidance: Re-promulgation undermines the Legislature’s role in “scrutinizing” executive decisions, allowing the executive to effectively bypass the democratic process of law-making.
(iii) Constitutional Spirit Violation: The Constitution mandates ordinances as temporary, emergency measures. Re-promulgation defeats this “temporary” nature, converting ordinances into tools of “executive overreach.”
(iv) Preventing Misuse: The requirement to lay ordinances before the Legislature within a specific timeframe ensures accountability. Avoiding this through re-promulgation violates constitutional “checks and balances.”
(v) D.C. Wadhwa Case Precedent: In the “D.C. Wadhwa v. State of Bihar” case (1987), the Supreme Court condemned the practice of re-promulgation, emphasizing that repeated ordinances cannot substitute regular law-making.
Constitutional Safeguards and Judicial Oversight
The judiciary has played a pivotal role in ensuring that ordinance-making powers are exercised within “constitutional limits.”
(i) Temporary Nature Emphasized: The judiciary has consistently reaffirmed that ordinances are to serve as “temporary” measures in situations of immediate necessity and not as a substitute for legislative processes.
(ii) Re-promulgation Unconstitutional: The Supreme Court has declared repeated re-promulgation as a breach of constitutional provisions, emphasizing the need for legislative approval and “democratic oversight.”
(iii) Governor’s Satisfaction Reviewable: While the Governor’s satisfaction regarding the need for ordinances is subjective, courts have held that this satisfaction is subject to judicial scrutiny for malafide or “arbitrary” use of power.
(iv) Upholding Legislative Sovereignty: The judiciary has emphasized the Legislature’s primacy in law-making, reinforcing the temporary and emergency nature of ordinances and preventing executive encroachment on legislative authority.
(v) Separation of Powers Preserved: Through judicial intervention, courts have ensured that the “separation of powers” doctrine remains intact, with the executive’s role in law-making confined to urgent, limited situations.
Impact on Democratic Governance
Unchecked ordinance-making and re-promulgation undermine “democratic governance” and distort the balance of power.
(i) Weakening of Legislature: Frequent re-promulgation diminishes the role of the elected Legislature, concentrating “lawmaking” power in the executive and eroding representative democracy.
(ii) Breach of Accountability: Ordinance-making bypasses legislative “deliberation” and weakens the mechanisms of executive accountability to the Legislature, which is essential in a parliamentary system.
(iii) Public Trust in Institutions: The overuse or misuse of ordinance-making powers erodes “public trust” in democratic institutions, as laws are enacted without proper debate or consultation with elected representatives.
(iv) Constitutional Balance at Risk: Unchecked ordinance powers disturb the “constitutional balance” between the executive and Legislature, tilting power in favor of the executive and weakening the checks on governance.
(v) Safeguarding Constitutional Democracy: Ensuring ordinances are subject to strict judicial and legislative oversight protects the “constitutional framework” of India’s democracy, preventing executive overreach and arbitrary law-making.
Conclusion
The ordinance-making power of the Governor is an “emergency tool,” not a regular legislative route. Constitutional safeguards and judicial oversight ensure that this power is used responsibly, preserving “legislative supremacy” and democratic governance in India’s parliamentary system.
