India does not follow strict separation of power and this allows the President and Governors to exercise legislative power under Article 123/213 to issue ordinance based on constitutional conditions.
Essential Conditions Under Article 213
- Governor promulgates ordinances to meet extraordinary circumstances when State Legislature/s are not in session and the Governor is satisfied to take immediate action.
- Ordinances must be laid down before the State Legislative Assembly and Legislative Council.
- It ceases to operate
- at the expiration of six weeks from the reassembly of the Legislature, or
- if a resolution disapproving such ordinance is passed.
- Ordinances issued under Article 213 are done at the behest of the Council of ministers and are not the discretionary power of the Governor.
|Illegality of Re-promulgation||Reasons for Re-Promulgation|
|D.C. Wadhwa v State of Bihar|
• mechanical re-promulgation of ordinance without being approved by the legislature resulted in colourable exercise of power by the executive.
• ruled re-promulgation of ordinances as unconstitutional.
Krishna Kumar Singh vs. State of Bihar
• Re-promulgation undermines parliamentary legislative procedures and hence is a violation of Indian Constitution.
• Failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution.
• Satisfaction of President/Governor while issuing ordinance is not immune from judicial review.
|Exception provided by D.C. Wadhwa for Re-promulgation|
• Matter could not be taken up due to existing legislative business
• Occurrence of an emergent situation where re-promulgation becomes necessary
Constitution does not expressly prohibits re-promulgation.
Despite Supreme Court Judgments, both centre and states have resorted to the practice of re-promulgation. Kerala government had recently sent 11 ordinance for re-promulgation and the centre in 2014 has re-promulgated Land Acquisition Act. Thus, there is need for more clarity regarding misuse of re-promulgation of ordinances.