Articles 153-167 (Part VI) deal with the State Executive, and the Governor acts as the Chief Executive Head of the State. Under Article 213, the Governor has the power to promulgate ordinances.
Legislative Powers-
Summoning and Proroguing Houses (Article 174)
Article 200 – Giving assent to the Bills
Article 175- Addresses the first session of the State Legislature after each general election.
Appoints the Speaker of the House
Reservation of Bills for President’s Consideration (Article 201)
Nominates one-sixth members of the Legislative Council (if it exists).
Ordinance-Making Power (Article 213)
Essential Conditions for Exercise of Legislative Powers by the Governor
Legislature Not in Session – Ordinance can be issued only when both Houses (or the sole House) of the State Legislature are not in session.
Immediate Need – The Governor must be satisfied that circumstances exist which render it necessary to take immediate legislative action.
Legislative Competence – The ordinance can only be issued on a subject within the State Legislature’s competence under State or Concurrent Lists.
Presidential Assent (Proviso to Article 213(1)) – Required if-
The Bill would need the President’s previous sanction; or
The law conflicts with any Parliamentary law; or
It covers subjects where Parliament has overriding powers.
Temporary Nature – The ordinance must be laid before the Legislature and will cease to operate six weeks after its reassembly, unless replaced by an Act.
Legality of Re-promulgation of Ordinances
Judicial Precedents
D.C. Wadhwa v. State of Bihar (1987) – Re-promulgation of ordinances without legislative approval was termed as a “fraud on the Constitution”. SC has held that, An ordinance can be challenged if it-
Constitutes colorable legislation;
Violates Fundamental Rights;
Contravenes constitutional provisions (e.g., Article 301); or
Has unconstitutional retrospective effect.
Krishna Kumar Singh v. State of Bihar (2017) – Placing an ordinance before the Legislature is mandatory. Re-promulgation without fresh justification is invalid and violates legislative supremacy.
R.C. Cooper case (1970) – Judicial review permissible if there is no genuine requirement of immediate action.
A.K. Roy v. Union of India (1982)- The Supreme Court held that an ordinance cannot substitute parliamentary legislation and must be used only in cases of extreme urgency or unforeseen emergency.
Constitutional and Democratic Implications
Re-promulgation violates the “3D principle” – Debate, Discussion, Deliberation.
It converts an emergency power into a routine legislative tool, eroding separation of powers.
Failure to place an ordinance before the Legislature constitutes an “abuse of power” and fraud on the Constitution.
Way Forward
Mandatory Legislative Review within a fixed timeframe.
Transparency in Justification – The Governor’s satisfaction for issuing an ordinance should be recorded in writing and made public.
Adherence to Constitutional Morality – Governors must act within the spirit of the Constitution, using ordinance powers only in genuine emergencies.
The ordinance power of the Governor is a tool of urgency, not convenience. As Soli Sorabjee observed, Governors can be a “driving force for democracy” only when they respect the principles of separation of powers and constitutional propriety.