Krishna Kumar Singh vs. State of Bihar [(2017) 3 SCC 1]: Supreme Court of India
Necessity is distinguished from a mere desirability while promulgating an Ordinance
27. The authority which is conferred upon the Governor to promulgate Ordinances is conditioned by two requirements. The first is that an Ordinance can be promulgated only when the state legislature is not in session. When the legislature is in session, a law can only be enacted by it and not by the Governor issuing an Ordinance. The second requirement is that the Governor before issuing an Ordinance has to be satisfied of the existence of circumstances rendering it necessary to take immediate action. The existence of circumstances is an objective fact. The Governor is required to form a satisfaction of the existence of circumstances which makes it necessary to take immediate action. Necessity is distinguished from a mere desirability. The expression “necessity” coupled with “immediate action” conveys the sense that it is imperative due to an emergent situation to promulgate an Ordinance during the period when the legislature is not in session. The Governor may then promulgate an Ordinance “as the circumstances appear to him to require”. Both these requirements indicate a constitutional intent to confine the power of the Governor to frame Ordinances within clearly mandated limits. The first limit describes the point in time when an Ordinance may be promulgated. No Ordinance can be issued when the legislature is in session. The second requirement conditions the Ordinance making power upon the prior satisfaction of the Governor of the existence of circumstances necessitating immediate action.
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