Ordinance-making power and re-promulgation limits
Note
Re-promulgation transforms an emergency power into a permanent substitute for legislating, a fraud on the Constitution, as Krishna Kumar Singh (2017) held. Articles 123 and 213 let the President and a Governor promulgate an ordinance with the force of an Act when the House is not in session and immediate action is needed. The instrument is temporary by design: it must be laid before the legislature on reassembly and lapses six weeks later unless enacted. D.C. Wadhwa (1987) struck down Bihar's practice of re-promulgating ordinances indefinitely. The seven-judge bench in Krishna Kumar Singh (2017) further held that lapsed ordinances cannot create enduring rights.
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Questions on this topic
Consider the following pairs regarding the Governor's Ordinance-making power under Article 213 of the Constitution of India:
- Condition for promulgation — Legislature must not be in session AND Governor must be satisfied that immediate action is necessary
- Ordinance's legislative reach — Co-extensive with the State Legislature's legislative competence, i.e., subjects in List II and List III of the Seventh Schedule
- Repromulgation of Ordinances without placing before the Legislature — Held constitutionally impermissible by the Supreme Court as a fraud on the Constitution
Which of the pairs given above is/are correctly matched?
Explanation
All three pairs are correctly matched under Indian constitutional law. First, Article 213 empowers the Governor to promulgate an Ordinance only when the State Legislature is not in session and the Governor is satisfied that circumstances exist requiring immediate action — both conditions must co-exist. Second, the Governor's Ordinance-making power under Article 213 is not unlimited; an Ordinance can only legislate on subjects within the State Legislature's competence — List II (State List) and concurrent subjects under List III of the Seventh Schedule. The Governor cannot promulgate an Ordinance on a Union List subject. Third, the Supreme Court in D.C. Wadhwa v. State of Bihar (1987) laid down the doctrine that systematic repromulgation of Ordinances — to bypass the Legislature and keep an Ordinance alive indefinitely — is a fraud on the Constitution and is judicially reviewable. The Maharashtra episode (amending the Maharashtra Cooperative Societies Act via a Governor's Ordinance while the Legislature was not in session) illustrates all three dimensions: the Governor acted during a recess, exercised power over a subject within State legislative competence (cooperative societies), and the act is subject to judicial scrutiny.
Consider the following pairs regarding the constitutional and legal principles involved in the exercise of ordinance-making power under Article 213 of the Constitution:
- Colourable exercise of power — Legislature enacts a law that is facially valid but designed to achieve an object that falls outside its competence or is constitutionally impermissible
- Manifest arbitrariness — A legislative or executive action so unreasonable that it lacks an adequate determining principle and bears no rational nexus to the object sought to be achieved
- Doctrine that a law cannot be stayed unless it is absurd — Courts exercise restraint in granting stays against legislation because the mere possibility of abuse of a provision does not invalidate the law
Which of the pairs given above is/are correctly matched?
Explanation
All three pairs are correctly matched. First, the doctrine of 'colourable exercise of power' — sometimes rendered as 'what cannot be done directly cannot be done indirectly' — holds that if a legislature (or executive using ordinance power) uses an apparently valid form of law to achieve a constitutionally impermissible purpose, the law can be struck down despite its facial validity; it is a fraud on the Constitution. Second, 'manifest arbitrariness' as a ground for judicial review — articulated prominently by the Supreme Court in Shayara Bano v. Union of India (2017) — refers to legislation or state action that is capricious, excessive, or disproportionate to the point of having no adequate determining principle; it is a recognised ground under Article 14 to invalidate laws. Third, the principle of judicial restraint regarding stays on legislation — that the mere possibility of abuse of a provision does not invalidate a law — reflects the settled constitutional norm that courts presume legislation to be valid and require a very high threshold (such as the law being ultra vires or on its face absurd) before suspending its operation; this restraint was explicitly invoked in this controversy. Under Article 213, an ordinance issued by the Governor (or President under Article 123) has the same force as a law passed by the legislature, but it lapses if not approved by the legislature within a stipulated period — making it subject to the same doctrines of colourable exercise and manifest arbitrariness that apply to legislation.
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