Referring to the case laws, explain the discretionary powers of the Governor? Under what circumstances can a bill be reserved for the President’s consent? (15 Marks). (250 Words)
Articles 153 to 167 in Part VI of the Constitution deal with the state executive. The state executive consists of the governor, the chief minister, the council of ministers and the advocate general of the state.
The executive power of the state shall be vested in the governor either directly or through officers subordinate to him in accordance with this Constitution (Article 154).
There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion. (Article 163).\
In addition, to the above constitutional discretion the governor, like the president, also has situational discretion in the following cases:
Appointment of chief minister when no party has a clear-cut majority in the state legislative
assembly or when the chief minister in office dies suddenly and there is no obvious successor.
Dismissal of the council of ministers when it cannot prove the confidence of the state legislative assembly.
Dissolution of the state legislative assembly if the council of ministers has lost its majority.
Above mentioned points evolved over time in SR bondmaid case and Ram Eshwar prasad case Supreme court issued certain directions and guidelines to use discretionary powers sparingly, In Nazim Rebia case(2016),The Apex court did not give literal meaning to the discretionary powers of the Governor will convert the Governor into super constitutional authority and emphasized on the “doctrine of harmonious construction”.
The Governor can reserve certain bills for the consideration of the president. In one case such reservation is obligatory, that is,
where the bill passed by the state legislature endangers the position of the state high court.
Ultra-vires, that is, against the provisions of the Constitution.
Opposed to the Directive Principles of State Policy.
Against the larger interest of the country.
Of grave national importance.
Dealing with compulsory acquisition of property under Article 31A of the Constitution. Hence, these are the discretionary powers of the governor to exercise. Following the Sarkaria and Punnchi commission recommendations will make the governor role more functioning and vibrant as the constitutional head.
‘Ordinance route is bad, promulgation is worse’. How will you explain this statement in the context of Indian Parliamentary affairs in the recent past? (15 marks) (250 Words)
Article 123 and 213 of the Indian Constitution confers power to promulgate ordinance on the
President and the Governor respectively.
In the context of the Indian Parliament, it has been observed that ordinances are being frequently resorted to by the government such as Insolvency and Bankruptcy code, 2018, Fugitive economic offenders 2018 and Farm laws Bill of 2021.
Under the Constitution, Ordinance making power of the executive is only when the legislature is not in session, Immediate action is required where a president cannot promulgate unless he is satisfied that there are circumstances that require ‘immediate action’.
There has been frequent resorting to ordinances due to reluctance to face legislature,
lack of majority in the Parliament (Rajya Sabha) Ex: Aadhar bill labeled as money bill to bypass Rajya Sabha.
Repeated and willful disruptions by opposition stifled government businesses.
However, there are issues with regard to ordinance making power
a. Executive power to issue ordinances is against the doctrine of Separation of Powers.
b. It bypasses the very nature of democracy and parliament to involve in deliberate discussions and debates.
c. Re-promulgation defeats the constitutional setup of limited power to frame ordinances of President and Governor.
d. It poses a threat to the sovereignty of Parliament and the State legislature which have been constituted as primary lawmakers.
e. The Supreme Court in numerous cases such as RC Cooper vs Union of India held that the President’s decision on immediate action can be challenged and open to Judicial review.
f. It too reiterated in Krishna Kumar Singh v/s State of Bihar, 2017 that failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution.
g. Ordinances although aimed as temporary are eventually taking a permanent seat in the law books without the legislative process.
h. The procedure of consulting the chief minister in the appointment of the state governors should be prescribed in the Constitution itself. The Constitution has provided for Separation of Power where enacting laws is the function of legislature. The Executive must show self restraint by using it sparingly as a last resort.
