Ordinance Making Power of Governor

Ordinance Making Power of Governor

Subject : Polity

Section: Parliament

Concept :

• Tamil Nadu Speaker M. Appavu said on Friday that he suspected “some pressure” mounted on Governor R.N. Ravi forced him to return the Bill to ban online gambling and regulate online games.
• The Governor had himself promulgated an ordinance on the matter last year, but returned the Bill passed by the Assembly, he said.

Ordinance Making Power of Governor

• Article 213 states that the Governor of the state may issue ordinances when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
• These ordinances have the same legal force and effect as an Act of legislature, but they are only temporary in nature.

Properties of the Ordinance

• An ordinance can be retrospective, which means that it can be enacted prior to its approval.
• An ordinance passed while legislature is in session is deemed null and void.
• To stay a law, the Ordinance must be approved by legislature within six weeks of its reassembly. Its existence is terminated if the legislature does not act within six weeks of its reassembly.
• Acts, laws, and events that occurred as a result of the ordinance remain in effect until it expires.
• Ordinance promulgation cannot be regarded as a substitute for the Governor’s legislative authority.
• Ordinances can only be passed on subjects where the State legislature has the authority to pass laws.
• Ordinances cannot be used to revoke the fundamental rights of the citizens guaranteed by the Indian Constitution.
• The ordinance would also be declared null and void if legislature passes a resolution opposing it.
• The Governor can also revoke an Ordinance at any time but his power to make/revoke an Ordinance is not discretionary, and he can promulgate or revoke an Ordinance only on the advice of the Council of Ministers headed by the chief minister in the assembly.
• The Governor of a State cannot make an ordinance without the reference of the President in the following cases :
• Bills that have similar provisions require the prior approval of the President to introduce the Bill in the Assembly.
• Which Bills contain similar provisions, where the Governor has already considered reserving the Bills for consideration of the President.
• Which bills contain the same provisions, where those provisions should require the assent of the President.

Misuse of the Ordinance making power

• Deliberate bypassing of the legislature:
  • At times there are instances that legislature is being deliberately bypassed to avoid debate and deliberations on contentious legislative proposals.
  • This is against the ethos and spirit of democracy.
• Repromulgation of ordinances:
  • As observed by the Supreme Court, re–promulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, especially when the government persistently avoids placing the ordinances before the legislature.
• Undermining the Doctrine of Separation of Powers:
  • In the Kesavananda Bharati vs. State of Kerala case 1973, the Supreme Court listed the separation of powers as a “basic feature” of the Constitution.
  • The repromulgation undermines the separation of powers, as it effectively allows the executive to make permanent legislation without legislative input or approval.
• The satisfaction of Governor:
  • Ordinance can be promulgated only when the Governor is satisfied that circumstances exist for the same thus providing the scope of misuse of the power.

Supreme Court’s Judgements:

• It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
• Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.
• Even after tough judgments on the use of ordinances, both the Centre and state governments have ignored the Supreme Court’s observations.
• For example, in 2013 and 2014, the Securities Laws (Amendment) Ordinance was promulgated three times.