[Model Answer QP2022 GS2] Discuss the essential conditions for exercise of the legislative powers by the governor. Discuss the legality of re-promulgation of the ordinances by the Governor without placing them before the Legislature.

According to Article 154, the executive power of the state shall be vested in the governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
The primary function of the governor is to preserve, protect and defend the constitution and the law as incorporated in their oath of office under Article 159 of the Indian constitution in the administration of the state affairs.

Essential conditions for the exercise of the legislative powers by the Governor.

  1. Recommendations of the council of ministers:  Recommendations of the council of ministers are important to summon or prorogue the state legislature and dissolve the state legislative assembly.
  2. Consultation with the Election Commission: Question of disqualification of members of the state legislature to be carried out in consultation with the Election Commission.
  3. Conditions on Ordinance making:
    • o He can promulgate ordinances only when the state legislature is not in session. That is, both houses or either of them is not in session.
    • He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
    • His ordinance-making power is not a discretionary power. This means that he can promulgate or withdraw an ordinance only on the advice of the council headed by the chief minister.
  4. Reserving bills for the consideration of the President: Those bills which are Ultra-vires, Opposed to the DPSP, and against the larger interest of the country, the Governor should reserve such bills for the consideration of the president.

Repromulgation of ordinances by the States

  1. Bihar had issued 256 ordinances between 1967 and 1981, of which 69 were re-promulgated several times, including 11 which were kept alive for more than 10 years.
  2. In 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.

Legality of re-promulgation of ordinances

DC Wadhwa Case 19871. In this case, The court ruled that successive re-promulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to a violation of the Constitution and the ordinance so re-promulgated is liable to be struck down.
2. It held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature
Krishna Kumar Singh vs. State of Bihar 2017 1. Government or state cannot run a parallel government through a route of ordinances and its re-promulgation.
2. Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
The Governor is a titular head or constitutional head and at the same time, he is the agent of the centre as the union government nominates the Governor in each state. Hence the governor’s role as linchpin between centre and  state is paramount. 

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