Power of Governor for Promulgating an Ordinance

Priyanshi Soni, United World School of Law, Karnavati University 

To the point 

When urgent action is required when the state legislature is not in session, the Indian Constitution permits the governor of a state to issue an ordinance under Article 213. This ordinance has the same legal force as a piece of legislation passed by the legislature, despite its temporary nature. The concepts of democracy and the separation of powers are threatened, though, when this authority is abused, especially when it is used to re-promulgate without parliamentary consent. Through judicial review, the judiciary has intervened to examine such executive acts, stressing that they must be transparent, time-bound, and utilized only in true crises.

Abstract 

The Constitution of India grants power to the executive to promulgate an ordinance. Ordinance is a statute that the head of the country or the state’s governor has the authority to promulgate when the parliament is in recess. This article discusses the power of ordinance-making with specific regard to the Governor under Article 213. The article goes through landmark legal cases and analyses this power and questions its constitutionality. The study will show voidability of ordinances and how it is a threat to democracy.

The Proof 

What is Ordinance? 

The Indian Constitution grants the power to the executive that is actually vested with the legislative by way of giving Ordinance making power. The ordinance making power is given under article 123 and 213 to the president and the governor respectively. These are the kind of urgency making power vested with the executive that makes law on urgent or unforeseen events when the legislative in not in the session. It has the same effect as the law that is passed by parliament but is temporary in nature. Ordinance is also a law under Article 13 of the Indian Constitution and the power vested to pass ordinance is with the President under Article 123 only to the matters respected to list 1 and list 3 of the 7th Schedule whereas the Governor power to promulgate an ordinance is restricted only to the matters mentioned under list 2 and list 3 of the 7th Schedule of the Constitution. 

One might think what the problem with this provision is but as we all know ‘with great power comes great responsibility’ and ‘absolute power corrupts absolutely’. When both are put together cause chaos and turbulence. As the distinction between three main organs of a nation which is the executive, legislative and judiciary where the legislation makes the law, executive ensures it enforcement and judiciary interprets and adjudicates them gets disrupted because the ordinance making power is giving the President of the nation or the Governor of a state the power to make laws which is allowing an executive body to take legislative decisions. The chances of corruption and illicit use of this power happens.

Furthermore, the issuance of ordinances by the executive branch, specifically the governor, in violation of Article 213 undermines the basic essence of democracy, which is a system in which citizens elect representatives to the legislature to enact laws on their behalf.

Following that, the re-promulgation of ordinances is also a huge problem in the legal atmosphere. The re-enforcing of a new ordinance after its expiration of 6 weeks surpasses the legislative powers of the parliament and certainly is a misuse of the provision.

Power of Governor to Promulgate Ordinance

The Governor’s Authority to Issue Ordinances
Article 213 of the Indian Constitution gives the governor the authority to promulgate an ordinance. The governor can issue an ordinance in the following ways:
(1) When the State Legislative Assembly is not in session 

(2) The governor is convinced that there are specific circumstances that need him to act right away
According to Article 213 clause (2), the ordinance will be presented to the State Assembly and will cease to be in effect six months after the legislature’s reassembly.

Use of Legal Jargons 

A number of significant legal concepts and theories are relevant when examining the governor’s authority to issue an ordinance: 

1. Ordinance: When the legislature is not in session, the executive branch (the president or governor) may issue an ordinance as a temporary legislation. Although the legislature must subsequently adopt it, it has the same legal power as an Act.
2. Judicial Review: The judiciary has the authority to determine whether an ordinance was issued with good intentions or with bad intentions. Courts determine whether the president’s or governor’s “satisfaction” is constitutionally permissible.
3. Legally speaking, satisfaction refers to the governor’s or president’s subjective assessment that the situation calls for quick action. This satisfaction was once thought to be subjective, but the 44th Amendment has made it susceptible to review.
4. Mala Fide Intentions: A theory in which acts are done with the intention of misleading or abusing authority. Courts look at whether ordinances are enacted for improper personal or political reasons.
5. Re-promulgation: According to D.C. Wadhwa v. State of Bihar, an ordinance is a constitutional fraud when it is repeatedly issued without being presented to the legislature.
6. The idea of colorable legislation states that actions that cannot be taken directly—such as passing laws without the consent of Parliament—cannot be taken indirectly, such as continually promulgating ordinances. It demonstrates how the executive has usurped legislative authority.
7. Executive Overreach: When the president or governor goes beyond what is allowed by the constitution and starts enacting laws without oversight.

Case Laws 

Judicial Review and Satisfaction of the Governor

This part of the question deals with the answer that whether the Judicial Ordinance making power of the Governor is subject to Judicial Review or not. A series of judgement talks about the challenge of the ordinance on based on several reasons – Mala Fide intentions, or legislative function that is acting as a Judiciary function or subject to Judicial Review or not.

1. In “S.K.G. Sugar Ltd. v. State of Bihar”, the satisfaction of Governor is same as that of the satisfaction of the President. The satisfaction of the Governor is based on subjective satisfaction and he is sole Judge if he thinks that it is necessary for him to take immediate actions to pass an ordinance. Thus, an inquiry into the justification of the President is not a matter in the court.
2. In “RC Cooper v. Union of India”, also known as “Bank Nationalization case”, challenged the Constitutional validity where the Central Government Nationalized the number of Private Banks through passing the Ordinance. It was argued that it does not satisfy the conditions as laid down in Article 123 and it does not make the President the final arbiter as to promulgate an ordinance. However, the question was not answer as it was converted into an act by the Parliament. But the minority opinion of RAY, J. ruled that the satisfaction of the President is subjective and the ordinance can be questioned on mala fide intentions.

To remove any doubt regarding the same, 38th Amendment 1975 inserted Article 123 clause (4), that the satisfaction of the President is final and it cannot be questioned on any grounds. However, the 44th Amendment 1978 (often known by its Corrective Amendment Act) was inserted and deleted this provision and open the ordinance to Judicial Review.

3. In “A.K Roy v Union of India”, the National Security Ordinance, 1980 was challenged and it was argued that the ordinance making power is not beyond the scope of Judicial Review. However, the court did not answer any of the question as the same was converted into an Act.
4. The above all arguments and the decisions were further answered in the judgements as the case of “S.R. Bommai v Union of India”, where it was held that the proclamation of emergency laid by the President under Article 356 can be challenged on the grounds of mala fide intentions and is also in the scope of Judicial review, ordinance is also the part in the same proclamation. “Nothing is excluded from Judicial Review”.
5. “T. Venkata Reddy v. State of Andhra Pradesh”, was of the opinion that the ordinance cannot be challenged because of any mala fide intention. The law making power is in the hands of the Legislature, but the President/Governor pass the Ordinance which is an executive function. Thus, the power of the Legislature is being performed by the Executive. It is also believed that the parliament will not make any law with any mala fide intentions as they are the people’s representative and they will not make any law against the people. Thus, the ordinance cannot be challenged on mala fide intention but it can be challenged if it is violative in the Indian Constitution regarding the Fundamental Rights.
6. Recently, the view of the court was upheld in the case of “Rameshwar Prasad V. Union of India”, that the Judicial review is in the same line as of the Bommai’s opinion. The ordinance that is promulgate by the Governor on his satisfaction can be revied and is under the scope of Judicial Review.

Thus, concluding that from starting of the cases to the end of the case – Rameshwar Prasad, it is well state that the ordinance is under the permit of Judicial Review and can be question which is upon the court’s discretion that whether it is made bona fide or not; and whether the facts have been duly verified or not.

Re – Promulgation: Robbing the Essence of “Six Weeks”

The power to promulgate an ordinance is of crucial nature and temporary law which can be passed by the Governor only when the Legislative Assembly is not in the session and The Governor is satisfied that certain circumstances exist which render it necessary for him to take immediate actions. But this power has been misused by the Governor many a times which is when they re-promulgate an ordinance again and again. 

1. As seen in the case, “D.C. Wadhva v State of Bihar”, 296 ordinances were promulgated and out of these 69 were repromulgated without being tabled in the Legislative Assembly. Court held that this was not correct and it sub – verges the power of the Legislative Assembly. It also held that:

“Re – Promulgation is a fraud on the Constitution”

2. In “Krishna Kumar v State of Bihar”,” a series of ordinances were promulgated by the Governor of Bihar, from 1989 onwards, that provided for the taking over of 429 of the 651 Sanskrit schools in the State”. Now the employees asked for salary from the Government and the same was challenged in the court and also none of these ordinances were placed before the Legislative Assembly. The court dismissed the petition and held that,” Re – Promulgation of Ordinance in Unconstitutional and it is a fraud on the Constitution”.

A very famous doctrine was established which is Doctrine of Colourable Legislation where the “thing you cannot do directly, you are doing in indirectly” – usurping the power of Legislature. In the case of DC Wadhva and Krishna Kumar, you cannot re – promulgate the ordinance directly, thus are doing it indirectly by passing the same ordinance again and again within a lapse of time.

Conclusion 

The grant of ordinance making power is given to the executive only for emergency situation and on the satisfaction of the Governor. Even though the provision for ordinances is for emergencies the usage of it is for far many other aspects. The ordinance making power not being immune to judicial review and the lack of check and balance of executive power has led this constitutional haphazard to take place.

As the supreme court has allowed the executive to have its way with the ordinances, the body has been severely criticized but the same way the executive hijack the law making powers of parliament, the judiciary has tried to bring in its executive power to curb the promulgation of ordinances and the essential of satisfaction of an emergency situation deemed necessary by the President or the Governor under judicial review.

In conclusion, the study suggests that promulgation of ordinance is present in the constitution for the sole purpose of emergency and that the creation of such a law is temporary and should be done with clean hands which means without an intent of re-promulgation. With that another essential to be pointed out is that any legislative power in the hands of the executive should be time-bound and proper checks and balances need to take place in order to have a democratic country.

FAQs 

1. What is ordinance? 

These are the kind of urgency making power vested with the executive that makes law on urgent or unforeseen events when the legislative in not in the session. It has the same effect as the law that is passed by parliament but is temporary in nature. The governor has the power to promulgate an ordinance under article 213 of the constitution and the president can do the same under article 123. 

2. When can governor issue an ordinance? 

The governor can issue an ordinance only when the state legislative is not in the session and on the satisfaction of the governor. 

3. Is ordinance under the permit of judicial review or not? 

From all the landmark cases to the end of the case – Rameshwar Prasad, it is well state that the ordinance is under the permit of Judicial Review and can be question which is upon the court’s discretion that whether it is made bona fide or not; and whether the facts have been duly verified or not.

4. What is re-promulgation of ordinance? 

The repeated issuance of the same ordinance without legislative consent is known as re-promulgation. In decisions such as D.C. Wadhwa v. State of Bihar, the Supreme Court has referred to it as a fraud on the Constitution.