- (1.) THE petitioners, in the instant writ petitions seek to assail the validity of the Rajasthan Sports Association (Registration, Recognition and Regulation of Associations) Ordinance, 2004 (for short the 'ordinance') which was promulgated and notified by the Governor of rajasthan in the Gazette Notification dated August 18, 2004.
(2.) THE challenge is based on the following grounds:- (i) Exercise of power under Article 213 of the Constitution of india for promulgating the Ordinance was vitiated by non-existence of the conditions which control exercise of the powers by the Governor. (ii) The Ordinance represents an infraction of the petitioner's fundamental right guaranteed by Article 19 (1) (c) of the constitution. (iii) The Ordinance is violative of Article 14 of the Constitution, being unreasonable and arbitrary. ARTICLE 213
(3.) IN support of the first contention it is canvassed on behalf of the petitioners that the power under Article 213 is conditional and its exercise is by the Governor and not by the Legislature. Further, the exercise of power is contingent upon subjective satisfaction of the governor as to existence of the conditions set out under Article 213. The power under Article 356 is comparable in all respects. The said power is also conditional in nature and is exercisable on the subjective satisfaction of the President. Section 72 of the Government of India act, 1919 vested the Governor General with similar power to promulgate Ordinances in emergencies. Reliance is placed on Bhagat singh v. The King Emperor (AIR 1931 PC 111), wherein the Privy council examined the issue of justiciability of the exercise of power under Section 72 of the Govt. of India Act, 1919 and held as under:-"that raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: It connotes a state of matters calling for drastic action which is to be judged as such by someone. It is more than obvious that someone must be the Governor-General and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the ordinance. Yet, if the view urged by the petitioners is right, the judgment of the Governor-General could be upset either (a) by this board declaring that once the ordinance was challenged in proceedings by way of habeas corpus the Crown ought to prove affirmatively before a court that a state of emergency existed, or (b) by a finding of this Board-after a contentions and protracted enquiry that no state of emergency existed, and that the ordinance with all that followed on it was illegal. In fact, the contention is so completely without foundation on the face of it that it would be idle to allow the appellant to argue about it. It was next said that the ordinance did not conduce to the peace and good government of British India. The same remarks applies. The Governor-General is also the judge of that. The power given by Section 72 is an absolute power without any limits prescribed, except only that it cannot do what the Indian legislature would be unable to do, although it is made clear that it is only to be used in extreme cases of necessity where the good government of India demands it. ";