D.C. Wadhwa v. State of Bihar
Supreme Court of India · 20 December 1986 · 5 judges · 1987 AIR 579, 1987 SCR (1) 798, 1987 SCC (1) 378
The Governor cannot keep an Ordinance alive by repromulgating it successively without placing it before the Legislature; such repromulgation is a colourable exercise of power and a fraud on Article 213, and the surviving Ordinance was struck down.
Facts
The Governor of Bihar promulgated 256 Ordinances between 1967 and 1981 and kept them alive for periods of one to 14 years by repromulgating them, often in batches, as soon as each session of the Legislature was prorogued. A circular of the Department of Parliamentary Affairs directed officers to get all Ordinances repromulgated before they expired and said that repromulgation without amendment needed no Cabinet approval. Petitioner No. 1, a professor who had researched the practice, and three persons affected by the Bihar Forest Produce, Intermediate Education Council and Bricks Supply Ordinances challenged the practice under Article 32. Two of these Ordinances were enacted as Acts during the pendency of the petitions; the Education Council Ordinance remained in force.
Questions before the Court
- Whether the petitioners, including a member of the public, had standing to challenge the practice of repromulgating Ordinances.
- Whether the Governor can repromulgate Ordinances successively under Article 213 without getting them replaced by Acts of the Legislature.
What the Court held
- A member of the public has sufficient interest to challenge a practice of the Executive in flagrant and systematic violation of constitutional limits, and the Court must entertain such a petition. The question was not academic because one Ordinance was still in force.
- The Ordinance power under Article 213 is an emergency power for when the Legislature is not in session. The primary law maker is the Legislature, and an Ordinance must have a limited life.
- Repromulgating an Ordinance with substantially the same provisions, without going to the Legislature, is a colourable exercise of power and a fraud on the Constitution. Repromulgation may be legitimate only where the Legislature could not pass the Bill for want of time or because of pressing business.
- Though the Governor's satisfaction is not examinable, the Governor has no power to repromulgate the same Ordinance successively. The Bihar Intermediate Education Council Ordinance was struck down, with costs of Rs. 10,000 to Petitioner No. 1.
Why it matters
The judgment sets the limits of the Governor's Ordinance power under Article 213. It treats mass repromulgation as the Executive usurping the Legislature's law making function and holds that a constitutional authority cannot do indirectly what it cannot do directly. It also recognises the standing of a public spirited citizen to challenge a systematic unconstitutional practice of the Executive.
In the Court's words
Copied from the official judgment; each passage links to its page.
“The power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in Session. The primary law making authority under the Constitution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circumstances may arise which render it necessary to take immediate action”
“The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law-making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive.”
“Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation.”
“The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him.”
Provisions interpreted
Related judgments
- Distinguishes Rustom Cavasjee Cooper v. Union of India (1970)“R.C. Cooper v. Union of India, [1970] 3 SCR 530. We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here.” (page 15)
- Followed in Krishna Kumar Singh v. State of Bihar (2017)
Case and bench
- Parties
- Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors.
- Case
- Writ Petition Nos. 412-15 of 1984
- Decided
- 20 December 1986
- Bench
- P.N. Bhagwati (CJ), Rangnath Misra, G.L. Oza, M.M. Dutt, K.N. Singh
- Opinions
- Unanimous. The Judgment of the Court was delivered by Bhagwati, CJ.
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