Governor Ordinances: Valid Without Amending Principal Laws?

In the dynamic landscape of Indian governance, emergencies often demand swift legislative action. But what happens when both houses of the state legislature or Parliament are not in session? Can the Governor promulgate an ordinance introducing changes without first amending the principal law? This question—wherein both the houses in parliament is not in session then governor promulgate ordinance from such changes are valid without making amendments in principle law—lies at the heart of constitutional provisions under Articles 123 and 213 of the Indian Constitution.

This blog post delves into the validity of such ordinances, their constitutional basis, judicial interpretations, and practical limitations. While this provides general insights, it is not legal advice—consult a qualified lawyer for specific cases.

Constitutional Foundation of Ordinance-Making Power

Articles 123 and 213 empower the President and Governors, respectively, to issue ordinances when legislative houses are not in session. These ordinances carry the same force and effect as an Act of the Legislature2017 1 Supreme 620 1985 0 Supreme(SC) 109.

The scheme is clear: ordinances serve as emergency legislative measures for urgent circumstances. As noted, Ordinances issued under Articles 213 (State Governors) and 123 (President) are legislative in character and have the same force as laws 2017 1 Supreme 620 1985 0 Supreme(SC) 109. They do not require amendments to any principal law to be valid, provided they stay within constitutional bounds and procedural norms.

Key conditions include:- Both houses must not be in session

KRISHNA KUMAR SINGH vs STATE OF BIHAR .

KRISHNA KUMAR SINGH vs STATE OF BIHAR .

This power bridges gaps when legislatures cannot convene, ensuring governance continuity without subverting democratic processes.

Validity Without Principal Law Amendments

A common misconception is that ordinances must amend existing principal laws to be effective. However, ordinances are standalone legislative instruments with full legal potency 2017 1 Supreme 620. Their validity hinges on:- Falling within constitutional authority.- Adhering to procedural requirements, like laying before the legislature upon reassembly.

The ordinances are not invalid simply because they do not amend the principal law; their validity depends on whether they fall within the constitutional power conferred and are issued for urgent circumstances 2017 1 Supreme 620. No prior amendment to the principal Act is needed—they operate as laws in their own right 1985 0 Supreme(SC) 109.

For instance, in cases involving urgent economic measures, such as price hikes on essential commodities, courts have upheld ordinances without questioning the absence of principal law changes. The Court held that the existence of circumstances necessitating the promulgation of an Ordinance under Article 123 of the Constitution is not justiciable 1973 0 Supreme(Cal) 279.

Purpose, Scope, and Lifespan

Ordinances address immediate needs: The constitutional intent is that ordinances are emergency legislative measures to be used when the legislature is not in session, with a limited lifespan (cease to operate after six weeks of reassembly unless replaced by legislation or disapproved) 2017 1 Supreme 620 1985 0 Supreme(SC) 109.

They must be:- Laid before the houses upon reassembly.- Approved within six weeks or they lapse.- Replaced by an Act for permanence.

Although primary power of law-making is vested in the Parliament but as and when both the Houses are not in session and it becomes necessary to take immediate action... 1996 0 Supreme(Del) 434. This underscores their temporary, bridging role.

Judicial Scrutiny and Non-Justiciability

Courts adopt a restrained approach. They do not probe the Governor's or President's motives or 'application of mind.' Courts do not generally examine the motives or the application of mind of the Governor or President in issuing ordinances, as their power is legislative and not executive in nature 2017 1 Supreme 620 1985 0 Supreme(SC) 109.

Review is limited to:- Whether procedural requirements were met.- If the ordinance exceeds constitutional power.

In a challenge to petrol price hike ordinances, the court affirmed: The petitioner had no fundamental right to get petrol at a price of his choice... the existence of circumstances necessitating the promulgation of the Ordinance was not justiciable 1973 0 Supreme(Cal) 279. Similarly, re-promulgation was upheld in specific scenarios, like short legislative sessions: The court carved out an exception... if the time at the disposal of the Legislature in a particular session is short, in that event the Governor or President may legitimately find that it is necessary to re-promulgate the Ordinances (from case on 10 re-promulgated ordinances).

Exceptions, Limitations, and Misuse Risks

While powerful, ordinance powers have checks:- Invalid if beyond scope: Provisions violating fundamental rights or legislative competence are void 2017 1 Supreme 620.- No bypassing legislature: The Executive cannot take resort to an emergency power... only when the legislature is not in session; but... cannot take over the lawmaking function of the legislature 1996 0 Supreme(Del) 434.- Re-promulgation limits: Cannot indefinitely re-issue lapsed ordinances to evade legislature; exceptions for genuine constraints like heavy legislative business.- Temporary nature: Cease after six weeks without approval 2017 1 Supreme 620 1985 0 Supreme(SC) 109.

Sources highlight: Ordinances making provisions beyond the scope of the constitutional power or violating fundamental rights are invalid 2017 1 Supreme 620. In contexts like money-lending amendments, ordinances expanded scopes validly without principal changes, but subject to scrutiny 2019 0 Supreme(Bom) 772.

Governor's role remains advisory-bound: The Governor is also required to summon the House or Houses of State Legislature... under Article 213 can promulgate Ordinances, during the period when the House or Houses are not in session 2016 0 Supreme(Del) 2806 2016 5 Supreme 227.

Practical Recommendations and Best Practices

To leverage this power effectively:- Ensure both houses are truly not in session.- Document urgency for records.- Promptly introduce replacing Bills.- Avoid overreach to prevent judicial invalidation.

Legislatures should replace ordinances swiftly for democratic legitimacy. As Dr. Ambedkar noted historically, this power avoids parallel legislatures but demands restraint 2017 Supreme(Online)(SC) 616.

Key Takeaways

• Governors can validly promulgate ordinances when legislatures are adjourned, without amending principal laws 2017 1 Supreme 620 1985 0 Supreme(SC) 109.
• They equate to Acts but are temporary and justiciable only on procedural/scope grounds.
• Misuse, like endless re-promulgation, risks unconstitutionality.

Understanding these nuances ensures compliance in governance. For tailored advice, seek professional legal counsel. Stay informed on evolving judicial precedents shaping India's federal structure.

References:- 2017 1 Supreme 620, 1985 0 Supreme(SC) 109,

KRISHNA KUMAR SINGH vs STATE OF BIHAR .