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

Article 213 of the Indian Constitution confers upon the Governor the extraordinary power to promulgate ordinances when the State Legislature is not in session. This mechanism is designed to enable the executive to deal with urgent and unforeseen circumstances, acting as a constitutionally sanctioned exception to the doctrine of separation of powers, rather than a parallel law-making process.

Essential Conditions for Exercise of Legislative Powers by the Governor

The exercise of ordinance-making power by the Governor is not absolute and is contingent upon strict constitutional conditions:

• Legislative Vacuum: An ordinance can only be promulgated when the Legislative Assembly of the state (or both Houses in a bicameral legislature) is not in session. If an ordinance is promulgated when the legislature is in session, it is void.
• Subjective Satisfaction of Urgent Circumstances: The Governor must be "satisfied" that circumstances exist which render it necessary to take immediate action. However, as established in the R.C. Cooper Case (1970), this satisfaction is not entirely immune from judicial review and can be struck down if found to be mala fide or based on irrelevant grounds.
• Aid and Advice of the Council of Ministers: The Governor does not exercise this power in an individual capacity or at their own discretion. Under Article 163, the power is exercised solely on the aid and advice of the Council of Ministers headed by the Chief Minister.
• Co-extensive Jurisdictional Limits: The ordinance-making power is co-extensive with the legislative power of the state legislature. Ordinances can only be issued on subjects enumerated in the State List or Concurrent List, and they are subject to the same constitutional limitations, such as not violating Fundamental Rights (Article 13).
• Requirement of Presidential Instructions: In certain specific scenarios, the Governor cannot promulgate an ordinance without prior instructions from the President. This includes cases where:
  • A bill containing similar provisions would have required the prior sanction of the President for introduction.
  • The Governor would have deemed it necessary to reserve a similar bill for the consideration of the President.
  • An act of the state legislature containing the same provisions would be invalid unless it received the President's assent.

Legality of Re-promulgation of Ordinances without Placing them before the Legislature

Article 213(2) mandates that every ordinance must be laid before the State Legislature when it reassembles, and it ceases to operate at the expiration of six weeks from the reassembly. The practice of repeated re-promulgation of ordinances without placing them before the legislature, historically seen in the "Ordinance Raj" of Bihar, has been heavily scrutinized and deemed legally impermissible by the Supreme Court.

The legality of this practice has been settled through landmark judicial pronouncements:

• Fraud on the Constitution (D.C. Wadhwa v. State of Bihar, 1987): The Supreme Court struck down the practice of successive re-promulgation of ordinances by the Bihar government. The Court held that bypassing the legislature to rule by ordinances is a "colourable exercise of power" and a "fraud on the Constitution." The executive cannot usurp the law-making function of the legislature.
• Mandatory Constitutional Obligation (Krishna Kumar Singh v. State of Bihar, 2017): A seven-judge constitutional bench decisively ruled on the mechanics of re-promulgation:
  • Impermissibility of Re-promulgation: Re-promulgating an ordinance without placing it before the legislature is a direct violation of constitutional mechanics and is legally invalid.
  • Mandatory Laying: Placing the ordinance before the legislature is a mandatory constitutional obligation, not a mere directory provision. It ensures legislative oversight over executive actions.
  • Subversion of Democratic Process: The Court noted that failure to place an ordinance before the legislature, followed by its re-promulgation, subverts the democratic legislative process and violates the core democratic principle of representative government.
  • No Lasting Rights: The Court also ruled that rights, privileges, or liabilities created by an ordinance do not automatically survive its expiration. The legal fiction of an ordinance exists only for its temporary lifespan.

Conclusion

The ordinance-making power is a "necessary evil" embedded in the Constitution to handle administrative exigencies, not to empower the executive to legislate by decree. The requirement to place ordinances before the legislature is foundational to parliamentary democracy and legislative accountability. Circumventing this via re-promulgation breaches constitutional morality and violates the separation of powers. Therefore, the Governor’s legislative power must be exercised as a strictly limited, temporary, and conditional authority, fully subservient to the ultimate supremacy of the elected legislature.