Ordinance Making Power of Governor

Context: The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, has been cleared by the State Governor.

  • The ordinance makes religious conversion a cognisable and non-bailable offence, inviting penalties of up to 10 years in prison if found to be effected for marriage or through misrepresentation, force, undue influence, coercion, allurement or other allegedly fraudulent means.

Analysis

  • Governor can promulgate an ordinance only when:
  1. The legislative assembly (in the case of a unicameral legislature) is not in session or
  2. (In case of a bicameral legislature) when both the Houses of the state legislature are not in session or
  3. When either of the two Houses of the state legislature is not in session.
  • The last provision implies that an ordinance can be promulgated by the governor when only one House (in the case of a bicameral legislature) is in session because a law can be passed by both the Houses and not by one House alone.
  • He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
  • His ordinance-making power is co-extensive with the legislative power of the state legislature.
  • This means that he can issue ordinances only on those subjects on which the state legislature can make laws.
  • An ordinance issued by him has the same force and effect as an act of the state legislature.
  • An ordinance issued by him is subject to the same limitations as an act of the state legislature.
  • This means that an ordinance issued by him will be invalid to the extent it makes any provision which the state legislature cannot make.
  • He can withdraw an ordinance at any time.
  • His ordinance-making power is not a discretionary power.
  • This means that he can promulgate or withdraw an ordinance only on the advice of the council headed by the chief minister.
  • An ordinance issued by him should be laid before the legislative assembly or both the Houses of the state legislature (in case of a bicameral legislature) when it reassembles.
  • An ordinance issued by him ceases to operate on the expiry of six weeks from the reassembly of the state legislature.
  • It may cease to operate even earlier than the prescribed six weeks if a resolution disapproving it is passed by the legislative assembly and is agreed to by the legislative council (in case of a bicameral legislature).
  • He cannot make an ordinance without the instructions from the President in three cases:

(a) If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.

(b) If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President.

(c) If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.

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