Recently, a Constitution Bench of the Supreme Court expanded the purview of judicial review of ordinances by courts. It said it can now go into whether the President or the State Governor acted with an oblique motive to bypass the legislature and promulgate an ordinance.
“The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review,” a bench comprising Justice D Y Chandrachud, Justices SA Bobde, A K Goel, UU Lalit and L Nageshwara Rao held. What does the Article 213 say? Article 213 vests power in Governor to promulgate ordinances during recess of Legislature.
Except when both Houses of the Legislature are in session, if the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.
It shall be laid before the legislative Assembly, or where there is a Legislative Council in the state, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council.
It may be withdrawn at any time by the Governor. Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the legislature of the State assented to by the Governor, it shall be void. An Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the president and assented to by him.