The ordinance-making power of the Governor is a significant constitutional authority that allows the Governor to promulgate ordinances in the state when the Legislative Assembly is not in session. This power is outlined in Article 213 of the Constitution of India.
Article 213 – Power of Governor to Promulgate Ordinances during Recess of Legislature:
- Conditions for Exercise of Power:
- The Governor can promulgate ordinances when either of the two Houses of the Legislature (Legislative Assembly or Legislative Council) of the state is not in session.
- Situations Requiring Immediate Action:
- The ordinance-making power is intended to address situations that require immediate action and cannot wait for the convening of the Legislative Assembly or Council.
- Subject Matter of Ordinance:
- The Governor can issue ordinances on subjects on which the state legislature has the power to legislate.
- Duration of Ordinance:
- An ordinance has the same force and effect as an act of the state legislature, but it is temporary. It must be presented before the legislature when it reassembles.
- Approval by the State Legislature:
- The ordinance must be approved by the state legislature within six weeks from the reassembly of the legislature.
- Lapse of Ordinance:
- If the ordinance is not approved by the state legislature within the stipulated period, it lapses.
- Withdrawal of Ordinance:
- The Governor can withdraw the ordinance at any time.
- Repromulgation:
- The repromulgation of ordinances (reissuing the same ordinance after it has lapsed) is a controversial practice. The Constitution does not explicitly prohibit repromulgation, but it is generally considered an undesirable practice.
Rationale and Criticism:
- Need for Quick Action:
- The ordinance-making power is designed to allow the executive to take urgent and immediate action when the legislature is not in session.
- Criticism for Bypassing Legislature:
- Critics argue that the frequent use of ordinances, especially without legislative approval, can be seen as a way to bypass the legislative scrutiny and undermine the principle of separation of powers.
- Role of Governor:
- The role of the Governor in exercising this power is crucial. The Governor is expected to use discretion judiciously and only when circumstances necessitate urgent action.
- Democratic Accountability:
- The use of ordinances raises questions about democratic accountability, as ordinances are promulgated without the usual process of debate and scrutiny in the legislature.
Judicial Scrutiny:
- Judicial Review:
- The exercise of the ordinance-making power is subject to judicial review. Courts can examine whether the Governor’s action was within the constitutional limits and whether it met the conditions laid down in Article 213.
- Abuse of Power:
- Courts can intervene if the ordinance-making power is seen as being abused, for example, through frequent repromulgation.
In summary, the ordinance-making power of the Governor provides a mechanism for the executive to address urgent situations when the legislature is not in session. However, its use is subject to constitutional limitations and judicial scrutiny to ensure that it is not misused or used to bypass the regular legislative process.
