GS Paper 2 15 marks · 250w 14 min Hard
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.
Subtopic: Constitution & Polity · Governor's ordinance-making power
How to structure your answer
Introduction: Article 213 — potent but conditioned power → Essential conditions: House not in session, satisfaction of immediate necessity on ministerial advice, President's instructions in three cases, six-week life and mandatory laying → Re-promulgation: D.C. Wadhwa's fraud-on-the-Constitution doctrine → Krishna Kumar Singh 2017: unconstitutionality, reviewable satisfaction, no enduring rights → Conclusion: emergency device, not parallel legislation
Written within the word limit
282 words · target 250 words · 14 min
Article 213 empowers the Governor to promulgate ordinances — the executive's most potent legislative instrument at the state level — but hedges it with strict conditions that the Supreme Court has progressively tightened.
Essential conditions for exercise
- The Legislative Assembly (or, in bicameral states, either House) must not be in session.
- The Governor must be satisfied that circumstances exist requiring immediate action; this satisfaction is exercised on the aid and advice of the Council of Ministers and, after the 44th Amendment removed the finality clause, is open to judicial review for mala fides.
- The President's instructions are mandatory in three cases: where a similar Bill would have needed the President's previous sanction, where the Governor would have reserved such a Bill, or where an Act with the same provisions would be invalid without the President's assent.
- The ordinance must fall within the state legislature's competence, must be laid before the legislature, and ceases to operate six weeks after reassembly unless disapproved earlier or withdrawn.
Legality of re-promulgation
- D.C. Wadhwa v. State of Bihar (1987): Bihar had re-promulgated 256 ordinances, some kept alive for up to 14 years. The Court held wholesale re-promulgation to be a fraud on the Constitution and a subversion of the democratic legislative process, tolerable only in truly exceptional circumstances.
- Krishna Kumar Singh v. State of Bihar (2017, seven judges): re-promulgation without placing the ordinance before the legislature is unconstitutional; laying it before the House is mandatory; ordinances create no enduring rights and are not a parallel source of law.
The ordinance power is a constitutional safety valve for genuine urgency, not a substitute for legislation. A Governor who recycles ordinances to bypass the Assembly violates both the letter of Article 213 and the principle of legislative supremacy.
What an examiner expects to see
- Two threshold conditions: the House (or both Houses) not in session, and the Governor's satisfaction that circumstances require immediate action — exercised on ministerial advice.
- The Article 213 proviso mandates the President's instructions in three specified situations, including where the Bill would have been reserved for presidential assent.
- Limits: coextensive with the state legislature's competence; six-week life after reassembly; laying before the House is mandatory (Krishna Kumar Singh).
- The 38th Amendment made the satisfaction final; the 44th Amendment (1978) deleted that clause, restoring judicial review for mala fides.
- D.C. Wadhwa (1987): massive re-promulgation — 256 Bihar ordinances, some alive 14 years — is a fraud on the Constitution.
- Krishna Kumar Singh (2017): re-promulgation is unconstitutional; ordinance-making is no parallel source of legislation and creates no enduring rights.
Concrete cases, schemes and judgments
- D.C. Wadhwa v. State of Bihar (1987) — 256 ordinances re-promulgated in Bihar between 1967 and 1981
- Krishna Kumar Singh v. State of Bihar (2017) — seven-judge bench on re-promulgation and mandatory laying
- Kerala's repeated re-promulgation of ordinances during 2020-21, criticised in light of Krishna Kumar Singh
- Article 213 proviso — President's instructions where a similar Bill would need prior presidential sanction
Terminology to weave into the answer
ordinance rajre-promulgationfraud on the Constitutionaid and advicejudicial review of satisfactionlegislative supremacy