Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation…

Under Article 213 of the Constitution, the Governor is vested with the extraordinary legislative power to promulgate ordinances. This power is not a parallel stream of law-making but an emergency mechanism subject to specific constitutional conditions:

Essential Conditions under Article 213 First, the power can be exercised only when the State Legislature (or either House in a bicameral legislature) is not in session. Second, the Governor must be satisfied that circumstances exist rendering it necessary to take immediate action. Third, the Governor cannot promulgate certain ordinances without prior presidential instructions, particularly if a Bill containing the same provisions would have required President’s assent. Finally, every ordinance must be laid before the State Legislature upon reassembly and ceases to operate six weeks after reassembly, or earlier if disapproved by the legislature.

Legality of Re-promulgation Re-promulgating ordinances without placing them before the legislature subverts parliamentary democracy. In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court held that mechanical re-promulgation without legislative scrutiny is a colourable exercise of power and a subversion of the constitutional process.

A seven-judge Constitution Bench in Krishna Kumar Singh v. State of Bihar (2017) reinforced that re-promulgation constitutes a "fraud on the Constitution." The Court held that while the Governor’s subjective satisfaction is not lightly interfered with, the exercise of ordinance power and any pattern of re-promulgation without tabling before the legislature is subject to judicial review.

Justiciability The 44th Constitutional Amendment (1978) removed the 38th Amendment's bar on judicial review of the Governor's satisfaction, so both the satisfaction and any pattern of re-promulgation can be tested in court.