A

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DR. D.C. WADHWA & ORS.

I'.

STATE OF BIHAR & ORS.

DECEMBER :w, 1986

[P.N. BHAGWATI CJ, RANGANATH MISRA, G.L. OZA,

M.M. DUTT AND K.N. SINGH, JJ.]

Constitution of India, 1950, Article 213-Scope of-Power of the

Governor

to repromulgate Ordinances from time to time without getting

them replaced by Acts

of Legislature-Scope of-Whether a colourable

C exercise of power, repugnant to the constitutional scheme.

The

State of Bihar adopted a practice of repromulgating the ordi·

nances on a massive scale from time to time without their provisions

being enacted into acts of the legislature. The practice was that, after

D

the session of the

State Legislature was prorogued, the same ordinances

which had ceased to operate were repromulgated containing substan­

tially the same provisions almost in a routine manner. The petitioners

challenged the validity

of this practice and in particular they challenged

the constitutional validity of three different ordinances issued by the

Governor

of Bihar, namely, (I) Bihar Forest Produce (Regulation of

E

Trade) Third Ordinance 1983; (ii) The Bibar Intermediate Education

Council

Third Ordinance 1983; and (iii) The Bihar Bricks

Supply

(Control) Third Ordinance 1983, since these Ordinances also suffered

the same process of repromulgation from time to time.

F

Petitioner No. 1, a Professor of Economics in Gokhale Institute of

Politics and Economics, Pone carried out thorough and detailed

re­

search in the matter of repromulgation of Ordinances by the Governor

of Bihar from time to time and filed the present writ P"tition as he was

interested in the preservation and promotion of constitutional function­

ing of the administration in the country. Petitioner Nos. 2, 3 and 4 were

affected by the provisions

of the aforesaid Ordinances mentioned at

serial no. (i)

(ii) and (iii)

respectively. The provisions of two ou¢ of the

G aforesaid three Ordinances were enacted into acts of the legislature

during the pendency of the writ petitions and the third Ordinance,

namely, the Bihar Intermediate Education Council Third Ordinance,

1983 is still in operation though a bill incorporating the provision of this

Ordinance

is pending consideration before the

State Legislature and it

H

bas

been referred to the Sel«t Committee.

798

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DR. D.C. WADHWA v. STATE OF BIHAR 799

Counsel for the Respondent-State opposed the writ petitions con-A

tending: (i)

that the petitioners have no locus standi to maintain the writ

petitions, since

out of the three

Ordinances, two of them had already

lapsed and their provisions were enacted into Acts of the Legislature

and so far as the third Ordinance, namely, the Bihar Intermediate

Education Council

Third

Ordinance 1983 is concerned, a legislative

proposal has already been introduced for enacting its provisions into an B

Act; (ii)

that the petitioners are not entitled to

challenge the practice of

repromulgating ordinances from time to time since they are mainly

outsiders who have no legal interest to challenge the validity of this

practice;

(iii) that the question raised before the Court is academic in

nature and should not be adjudicated upon by it; and (iv) that the Court

is not entitled to examine whether the conditions precedent for the

.C

exercise of power of the Governor under Art. 213 existed or not for the

purpose

of determining the

validity of an Ordinance.

Allowing the writ petitions,

HELD:

(!) The Bihar intermediate Education Council

Ordi-D

nance

1983 which is still in operation is struck down as unconstitutional

and void. The Governor cannot assume legislative function in excess of

the strictly defined

limits set out in the Constitution because otherwise

he would be usurping a functioo which does not belong to him. [818F ·GI

ln the instant case, the executive in Bihar has almost taken over E

the role of the Legislature in making laws not for a limited period but

for years together in disregard

of the constitutional

limitations. This is

clearly contrary to the constautional scheme and it must be held to be

improper and invalid. It is hoped and trusted that such practice shall

not be continued in the future and that whenever an Ordinance is made

and the Government wishes to continue the provisions of the Ordinance F

in force after the assembling of the Legislature, a Bill will be brought

before the Legislature for enacting those provisions into an Act. There

must not be Ordinance-Raj la the country. (8180-F]

2( !) The rule of law constitutes the core of the Constitution of

India and it is the essence of the rule of law that the exercise of the G

power by the State whether it be the Legislature

or the Executive or any

other authority should be within the

constitutional limitations ar.d if

any practice

is adopted by

tile Executive which is in flagrant and

systematic violation

of its

constitutional limltatioris, Jl!!titioner No. 1 as

a

member of the public would have

sufficient interest to challenge such

practice hy filing a writ petition and it would

he the

cogstitutional duty H

800 SUPREME COURT REPORTS (1987] 1 S.C.R.

A

of the Supreme Court to entertain the writ petition and adjudicate upon

the validity

ofsuch practice.

[805C-E]

2(2) The Bihar Intermediate Education Council Third Ordinance

1983 is still in force and it cannot therefore be said to be academic to

examine the challenge to its constitutional validity. Moreover, the ques-

B tion raised in these writ petitions is of highest constitutional importance

as

it does affect the power of the Governor to re-promulgate

Ordinances

and it is in public interest that the Executive should know what are the

limitations on the power

of the Governor in the matter of

re-promul­

gation of ordinances. If this question is not decided on merits, the

correct position in regard to the constitutional limitations on the power

C of the Governor to re-promulgate ordinances will remain undeter-

mined.

[805F-H] 1

S. P. Gupta & Ors. v. Union of India & Ors .. [ 198?] 2 SCR 365,

referred to.

D 3(

I) 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. [8!5C-D]

3(2) The primary law making authority under the Constitution

is

E 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 and in such a case in order that

public interest may not suffer

by reason of the inability of the

Legisla·

lure to make law to deal with the emergent situation, the Governor is <

vested with the power to promulgate ordinances. But every ordinance

F promulgated by the Governor must he placed before the Legislature

and it would 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, if any. The object of this provision

is

that since the power conferred on the Governor to issue

Ordinances is

G an emergent power exercisable when the Legislature is not in session,

an Ordinance promulgated hy the Governor to deal with situation

which requires immediate action and which cannot wait until the legis­

lature reassembles, most necesarily have a limited life. [815D-G]

3(3) The power to promulpte an Ordinance is essentially a

H power to

be used to meet an

extraordinary situation and it cannot be

•

DR. D.C. WADHWA v. STATE OF BIHAR 801

allowed to be "perverted to serve political ends". It is contrary to all

democratic norms that the Executive should have the power to make a

law,

but in order to meet an emergent situation, this power is conferred

on the Governor

and an Ordinance

issued by the Governor in exercise of

this power must, therefore, of necessity be limited in point of time. That

is why it is provided that the Ordinance shall cease

to operate on the

expiration

of six weeks from the date of assembling of the Legislature.

The Constitution makers expected that if the provisions of the

Ordi­

nance are to be continued in force, six weeks time should be sufficient

for the Legislature to pass the necessary Act. But if within this time the

Legislature does not pass such an Act, the Ordinance must come to an

end. [816A-C]

3( 4) 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 constitu­

tional scheme, for then the people would be governed not by the laws

made by the legislature as provided in the Constitntion but by laws

made by the Executive. The Government cannot by-pass the Legislatnre

and without enacting the provisions of the Ordinance in an Act of the

Legislatnre, repromulgate the ordinance as soon as the Legislature is

prorogued. [816E-F]

3(5) A constitutional authority cannot do indirectly what it is not

permitted to do directly. If there is a constitntional provision inhibiting

the constitutional authority from doing an act, such provision cannot be

allowed

to be defeated by adoption of any subterfuge. That would be

clearly a fraud on the constitutional provision. [816H; 817A-B]

4. When the constitutional provision stipulates that an Ordinance

promulgated by the Governor to meet an emergent situation shall cease

to be in operation

at the expiration

of six weeks from the reassembly of

the Legislature and the Government if it wishes the provisions of the

Ordinance to be continued in force beyond the period of six weeks has to

go before the Legislature which

is the constitutional authority entrusted

with the law making function, it would

most certainly be a colourable

exercise

of power for the Government to ignore the Legislature and to

repromulgate the Ordinance and thus to continue to regulate the life

and

liberty of the citizens through Ordinance made by the Executive.

Such a strategem would be repugnant to the constitutional scheme, as it

would enable the Executive to transgress its constitntional limitation in

the matter of law making in an emagent sitnatioo and to covertly and indi-

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802 SUPREME COURT REPORTS [1987) 1 S.C.R.

A redly arrogiite to itself the law making functioo o(tbe I g' ' h11~. [8171).G)

B

c

D

5. The court cannot examine th• question of satisfaction of the

Governor in issuing

an Ordinance, but the question in the present case

does not raise any controversy in regard to the satisfaction of the

Gover­

nor. The only question is whether the Governor has power to repro­

mulgate the same Ordinance successively without bringing it before the

Legislature.

That clearly the

Governor cannot do. [8188-C]

Bharat Singh v. Empire, AIR 1931 PC 111; Rajaram Bahadur

Kamlesh Narain Singh

v. Commissioner of Income

Tax, AIR 1943 PC

153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59 and R.C.

Cooper v. Union of India, (1970] 3 SCR 530, inapplicable.

ORIGINAL JURISDICTION: Writ Petition Nos. 412-15 of

1984

(Under Article 32 of the Constitution of India.)

Soli J. Sorabji, J.B. Dadachanji, Ravinder Narain, T.N. Ansari,

Joel Pares, S. Sukumaran and Dr. Chandrachud for the Petitioners.

L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Ms. S. .......

E

Relan for the Respondents.

The Judgment of the Court was delivered by

BHAGWATI, CJ. These petitions under Article 32 of the

Constitution raise a short question

of great constitutional importance

relating to the power

of the Governor under Article

213 of the

F Constit11tion to re-promulgate ordinances from time to time without

getting them replaced

by Acts of the Legislature. The question is, can

the Governor go on re-promulgating ordinances for an indefinite

period

of time and thus take over to himself the power of the

Legisla­

ture to legislate though that power is conferred on him under Article

2

13 only for the purpose of enabling him to take immediate action at a

G time when the legislative assembly

of the

State is not in session or

when in a case where there is a legislative council in the State, both

Houses

of Legislature are not in session. The facts giving rise to these

writ petitions are disturbing and

we may briefly state them as follows:

These writ petitions have been filed

by four petitioners

challeng­

H ing the validity of the practice of the Staie of Bihar in promulgating

}-

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DR. D.C. WADHWA v. STAIB OF BIHAR (BHAGWATI, CJ.] 803

and re-promulgating ordinances on a massive scale and in particular

they have challenged the constitutional validity of three different ordi­

nances issued

by the Governor of Bihar, namely, (i) Bihar Forest

Produce (Regulations of Trade) Third Ordinance,

1983; (ii) The Bihar

Intermediate Education Council Third Ordinance,

1983; and (iii) The

Bihar Bricks

Supply (Control) Third Ordinance, 1983. Petitioner No. I

is a professor of economics is the Gokhale Institute of Politics and

Eeonomics, Pune and he has spent a number of years in studying the

constitutional functioning of Indian politics. He

is deeply interested in

the preservation and promotion of constitutional functioning of the

administration in the country. He has made a

deep and profound study

of the practice which

is being followed in the

State of Bihar of promul­

gating and re-promulgating ordinances from time to time without

enacting them into Acts of the Legislature. Petitioner No. 2

is an

occupancy Raiyat of village Anigara, Kunti

Police Station in the dis­

trict of Ranchi. He grows forest produce

in his Raiyat land. Clause (5)

of the Bihar Forest Produce (Regulation of Trade) Third Ordinance,

1983 imposes restriction on the sale of specified forest produce and it

further created

State monopoly for sale and purchase of such forest

produce. Clause (7) of this ordinance conferred power on the State

Government to fix the price at which the specified forest produce may

be purchased by it

or by any authorised forest officer or agent from the

growers of such forest produce. The effect of these provisions

in the

Bihar Forest

Produce (Regulations of Trade) Third Ordinance was

that petitioner No. 2 wa" prevented from selling his forest produce

to any purchaser other than those mentioned in the ordinance and his

right to dispose of the forest produce

was adversely affected by these

provisions and he was therefore interested

in challenging the constitu­

tional validity of this ordinance. Petitioner No. 3

is a student studying

in Intermediate (Science) Class in A.N. College,

Patna. He was

affected by the Bihar Intermediate Education Council Third

Ordinance.

It is not necessary to refer to the provisions of this ordi­

nance since it could not be seriously disputed on behalf of the respon­

dents that the provisions of this ordinance affected, curtailed and/or

regulated the rights of petitioner No. 3 or at least had the potential of

doing so and petitioner No. 3 therefore challenged the constitutional

validity of this ordinance.

Similarly petitioner No. 4 was aggrieved by

the Bihar Brick Supply (Control) Third Ordinance because he is the

proprietor of South Bihar Agency, Patna, a brick manufacturing con­

cern operating under a licence issued by the Mining and the Industry

Department of the Government of Bihar and the provisions of this

ordinance empowering the

State Government to control and regulate

the manufacture, distribution, transport, disposal and consumption of

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804 SUPREME COURT REPORTS [1987] 1 S.C.R.

bricks, as also the price at which the bricks may be bought or sold

affected petitioner No. 4 and he accordingly joined the writ petition

and challenged the constitutional validity of this ordinance.

It was contended on behalf of the respondents that the

peti­

tioners had no locus standi to maintain this writ petition since out of

the three ordinances challenged on behalf

of the petitioners, two of

them, namely, Bihar Forest Produce (Regulations of Trade) Third

Ordinance,

1983 and the Bihar Bricks Supply (Control) Third

Ordi­

nance, 1983 had already lapsed and their provisions were enacted in

Acts

of the Legislature and so far as the third ordinance, namely, The

Bihar Intermediate Education Council Third Ordinance was

con­

cerned, a legislative proposal was already introduced for enacting its

provisions into an Act. The respondents also contended that the

petitioners are not entitled to challenge the practice prevalent in the

State of Bihar of repromulgating ordinances from time to time since

they were merely outsiders who had no legal interest to challenge the

validity

of this practice. We do not think this preliminary objection

raised on behalf

of the respondents is well-founded. It is undoubtedly

true that the provisions

of two out of the three ordinances challenged

in these writ petitions were enacted into Acts of the Legislature but

that happened only during the pendency of these writ petitions and at

the date when these writ petitions were filed, these two ordinances

were very much in operation and affected the interest of petitioners

Nos. 2 and 4 respectively. Moreover, the third ordinance, namely, The

Bihar Intermediate Education Council Third Ordinance

is still in

operation though a bill incorporating the provisions of this ordinance

is pending consideration before the

State Legislature and it has been

referred to a Select Committee and the right of petitioner No. 3 to

pursue a particular course of study

is vitally affected by the provisions

contained in that ordinance. Besides petitioner No. I

is a Professor of

Political

Science and is deeply interested in ensuring proper implemen­

tation of the constitutional provisions. He has sufficient interest to

maintam a petiiiou unct~r Article 32 even as a member of the public

because it is a right

of every citizen to insist that he should be governed

by laws made in accordance with the Constitution and not laws made

by the executive

In violation of the constitutional provisions. Of

course, if any particular ordinance was being challenged by petitioner

No. l he may not have the

locus standi to challenge it simply as a

member of the public unless some legal right or interest of his is

via·

lated or threatened by such ordinance, but here what petitioner No. 1

has a member

of the public is complaining of is a practice which is

being followed by the

State of Bihar of re-promulgating the ordinances

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DR. D.C. WADHWA v. STATE OF BIHAR [BHAGWATI, CJ.I 805

from time to time without their provisions being enacted into Acts of

A

the Legislature. It is clearly for vindication of public interest that

petitioner No. l has filed these writ petitions and he must therefore be

held to be entitled to maintain his writ petitions. In

S. P. Gupta & Ors.

v. Union of India & Ors., [ 1982] 2 SCR 365 one of us (Bhagwati, J. as

he then was) observed:-

"Any member of the public having sufficient interest can

maintain an action for judicial redress for public injury

arising from breach of public duty or from violation of

some provision

of the Constitution or the law and seek

enforcement

of such public duty and observance of such

constitutional

or legal

provision."

B

c

The rule of law constnutes the core of our Constitution and it is the

essence of the rule of law that the exercise of the power by the State

whether it be the Legislature or the Executive or any other authority

should be within the constitutional limitations and

if any practice is

adopted by the Executive which is inflagrant and systematic violation D

of its constitutional limitations, petitioner No. l as a

memtler of the

public would have sufficient interest to challenge such practice by

filing a writ petition and it would be the constitutional duty of this

Court to entertain the writ petition and adjudicate upon the validity of

such practice. We must therefore reject the preliminary contention

raised

on behalf of the respondents challenging the locus of the E

petitioners to maintain these writ petitions.

The respondents then contended that in any event the question

raised before the Court in these writ petitions was academic in nature

and should not be adjudicated upon by the Court. But this contention

urged on behalf

of the respondents is also without force since the Bihar F

Intermediate Education Council Third Ordinance

is still in force and it

cannot therefore be said to be academic to examine the challenge to its

constitutional validity. Moreover the question raised in these writ peti­

tions is

of highest constitutional importance as it does the power of the

Governor to re-promulgate ordinances and it

is in public interest that

the Executive should know what are the limitations on the power

of G

the Governor in the matter

of re-promulgation of ordinances. If this

question

is not decided on merits, the correct position in regard to the

constitutional limitations on the power of the Governor to re-promul­

gate ordinances will remain undetermined. We are of the view that this

question has great public importance and it must be decided

by us on

merits in

order to afford guidance to the Governor in the exercise of H

806 SUPREME COURT REPORTS (1987] 1 S.C.R.

A his power to repromulgate ordinances from time to time.

ll

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We shall now proceed to state how the Governor in the State of

Bihar has been indulging

in the practice of repromulgating the ordi­

nances from time to time

so as to keep them alive for an indefinite

period

of time. Petitioner No. 1 carried out thorough and detailed

research

in the matter of repromulgation of ordinances by the Gover­

nor of Bihar from time to time and the result of this research was

compiled

by him and published in a book entitled

"Repromulgation of

Ordinances: Fraud on the Constitution of India". Some of the relevant

extracts from this book have been annexed to the writ petition indi­

cating the number of ordinances repromulgated repeatedly

by the

Governor

of Bihar. It is clear on a perusal of these extracts that the

Governor of Bihar promulgated

256 ordinances between 1967 and

1981 and all these ordinances were kept alive for periods ranging bet­

ween one to

14 years by repromulgation from time to time.

Out of

these

256 ordinances 69 were repromulgated several times and kept

alive with the prior permission

of the President of India. The following

table would indicate the categorisation

of these 256 ordinances by

reference to their life groups:-

Life-Groups

(Years)

Upto 1

1-2

2-3

3--l

-l-5

5-6

6--7

7-8

8-9

9-10

10-11

11-12

12-U

13-1-l

Total

Number of

Ordinances

59

51

-15

1 l

21

21

11

8

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-l

6

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256

The enormity of the situation would appear to be startling if we have a

1-f look at some of the ordinances which were allowed to continue in force

'

DR. D.C. WADHWA v. STATE OF BDIAR (BHAGWATI, CJ.I 807

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by the methodology of repromulgation. The following table indicates

A

in the case of each ordinance, the title of the ordinance, the date of

first promulgation and the total period for which the ordinance

was

continued in force by adopting the stratagem of repromulgation:

~

s. Name of the Ordinance Dote on which life of the

No.

First

Ordinance

Promulgated B

2 3 4

)

Year Months Days

i. The Bihar Sugarcane 13.11.1968 13 11 19

~

(Regulation of Supply c

and Purchase) Ordinance

1968 (Ordinance No. 3 of

1968)

ii.

The Bihar Panchayati 14.8.1970

II 4 18

Raj (Amending and

D

Validating) Ordinance

1970 (Ordinance No. 3

.

of

1970)

-~- iii. The Bihar Hindu Religious 5.9. 1970 11 3 26

Trusts (Amendment)

Ordinance, 1970 (Ordi•

nance No. 5 of 1970) E

iv. The State Aid to 10.9.1970 II 3 21

Industries (Amendment)

'

Ordinance, 1970 (Ordi-

oance No. 8of 1970)

v. The Bibar Kbadi and 17.9.1970 11 3 14 F

Village Industries

(Amendment) Ordinance,

1970 (Ordinance No. 9

of 1970)

vi. The Bihar Soil and Water 10.2.1971 IO 10 19

Conservation and Land

G

-4

Development Ordinance,

1971 (Ordinance No. 16

of 1971)

vii. The Bihar Panchayati 15.5.1971 10 7 17

Raj (Amendment) Ordi·

nance, 1971 (Ordinance

No. 54of 1971)

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11987) 1 S.C.R. SUPREME COURT REPORTS

.;.,

viii. The Bihar Municipal 20.5.197 l 10 7 12

A (Third Amendment)

Ordinance, 1971 (Ordi·

nance No. 57 of 197 l)

ix. The Patna Municipal 22.5.197 l 10 7 10

Corporation (Amendment)

B

Ordinance, 197 l

(Ordinance No. 58 of 197 l)

x. Th·e Bihar State Housing 14.9.1971 10 3 17

Board Ordinance, 1971

(Ordinance No. JOI of 197 l)

xi. The Bihar Co-operative 7.10.1971 10 2 25

c

Societies (Second Amend-

ment) Ordinance, 197 i

(Ordinance No. 103 of 1971)

xii. The Bihar Agricultural 14.12. 1972 9 10 16

Produce Markets (Amend-

ment) Ordinance, 1972

D (Ordinance No. 6 of 1972)

xiii. The Bihar Medical Educa- 14.5.1972 9 7 18

tional Institutions

(Regulation and Control)

~

Ordinance, 1972

(Ordinance No. 69 of 1972)

E

xiv. The Rajendra Agricultural 15. l.1973 8 ll 17

Univers,ity (Amendment)

Ordinance, 1973

(Ordinance No. 2 of 1973)

xv. The Bihar Panchayati 22.2.1973 8 10 7

i F

Raj (Validating) Ordinance

1973 (Ordinance No. 5 of

1973)

xvi. The Bihar Panchayat 22.2.1973 8

10 7

Samitis and Zilla Parishads

(Amending and Validating

G

Ordinance, 1973

(Ordinance No. 6of 1973)

xvii. The Bihar Khadi and l.10.1973 8 3 0

Village Industries

(Amendment} Ordinance,

1973 (Ordinance No. 122

H

of 1973)

-~A:

DR. D.C. WADHWA v. STATE OF BIHAR !BHAGWATI, CJ.] 80')

xviii. The Motor Vehicles 20.5.1971 7 8 17

(Bihar Amendment) Ordi- A

nance, 1971 (Ordinance

No. 56of 1971)

xix. The Bihar State Aid to 27.4.1977 7 8 4

Industries (Second Amend-

ment) Ordinance, 1974

(Ordinance No. 56 of 1974)

B

xx. The Bihar Irrigation Laws 27.8.1974 7 4 3

y

(Arnendement)

Ordinance, 1974

(Ordinance No. 169 of 1974)

't

xxi. The Bihar Irrigation Field 29.8.1974 7 4 3 c

Channel (Amendment) Ordi-

nance 1974, (Ordinance

No. 170 of 1974)

xxii.

The Bihar

Soil and Water 16.9.1974 7 3 15

Conservation and Land

Development {Amendment) D

Ordinance, 1974 (Ordi-

nance No. 174 of 1974)

xxiii.

The Bihar Gramdan 26.2.1972 6 5 27

(Amendment) Ordinance

, .

1972 (Ordinance No. 12

of 1972) E

xx.iv. The Bihar Primary Edu- 5.9.1970 6 3 26

cation (Amendment) Ordi-

nance, 1970 (Ordinance

No. 6 of 1970)

xxv. The Bihar Regional Deve- 19.9.1974 6 3 12 F

lopmeht Authority Ordi-

nance, 1974 (Ordinance

No. 175 of 1974)

xxvi. The Chota Nagpur and 29. I0.1974 6 2 3

Santhal Parganas Autono-

mous Development Autho-

G

rity (Fifth Amendment)

Ordinance, 1975 (Ordi-

naoce No. 197 of 1975)

xxvii. The Bihar Motor Vehicle 29.11.1975 6 2

Taxation (Fifth Amendment) Ordinanc.e, 1975 (Ordi-

H

nance No. 207 of 1975)

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810 SUPREME COURT REPORTS (1987] 1 S.C.R.

xx.viii. The Bihar Case (Amend· 2.12.1975 6 0

ment) Ordinance, 1975

(Ordinance No. 209 ~f 1975)

xxix. The Bihar Public Land 5.12.1975 6 0 27

Encroachment (Amendment)

Ordinance, 1975 (Ordi-

nance No. 210 of 1975)

xxx. The Bihar Motor Vehicles 5.12.1975 6 0 27

Taxation (Sixth Amend-

ment) Ordinance; 1975

(Ordinance No. 212 of 1975)

xxxi. The Bihar Motor Vehicles 5.12.1975 6 0 27

Taxation (Seventh Amend-

ment) Ordinance,

1975

(Ordinance No. 214of 1975)

It will thus be seen that the power to promulgate ordinances was used

by the Government of Bihar on a large scale and after the session of

the State Legislature was prorogued, the same ordinances which had

ceased to operate were repromulgated containing substantially the

same provisions almost in a routine manner. This would be clear from

E

the fact that on 26th August, 1973 the Governor of Bihar

repro­

mulgated 54 ordinances with the same provisions and on 17th January,

1973, 49 ordinances were repromulgated

by the Governor of Bihar

containing substantially the same provisions and again on 27th April,

1974, 7 ordinances were repromulgated and on 29th April,

1974, 9

ordinances were repromulgated with substantially the same provi-

F sions. Then again on 23rd July,

197 4, 51 ordinances were

repro­

mulgated which included the self-same ordinances which had been

repromulgated on 27th and 29th April,

1974.

On 18th March, 1979, 52

ordinances were repromulgated while on 18th August, 1979, 51 ordi­

nances were repromulgated containing substantially the same provi­

sions. 49 ordinances were repromulgated on 28th April, 1979 and on

G 18th August,

1979, 51 ordinances were repromulgated. This exercise of

making mass repromulgation of ordinances on the prorogation of the

session

of the State Legislature continued unabated and on I Ith

August,

1980, 49 ordinances were repromulgated while on 19th January

1981, the number of ordinances repromulgated

was as high as 53. The

following table shows how many times the same Ordinance

was re-

H promulgated in order to keep its provisions

in force:

~

DR. D.C. WADHWA v. STATE OF BIHAR (BHAGWATI, CJ.] 811

·-A

Name of Date of first Last date How many Total A

the Ordi- promulgation of re-pro- times period

nance mulgation re-pro- of the life

mu/gated of ordinance

i ...{

1 2 3 4 5

!. TheBihar 13. 1.68 12.8.81 39 about 14 years

B

Sugarcane

(Regulation

of supply and

r

Purchase)

Ordinance,

1968.

t

2. TheBihar 14.8.70 19.1.81 35 about 12 years

c

Panchayat Raj

(Amending and

Validating)

Ordinance,

1970.

D

3. The Bihar 5.9.70 22.4.81 37 about 12 years

Hindu Reli-

gious

Trusts

-+-

(Amendment)

Ordinance,

1970.

4. TheBihar 10.9.70 23.4.81 34 about 12 years

£

State Aid to

Industries

(Amendment)

~

Ordinance,

1970.

5. The Bibar 17.9.70 19.1.81 35 about 12 years

F

Khadiand

Village •

Industries

(Amendment)

Ordinance,

1970.

G

It may be pointed out that the three ordinances challenged in these

writ petitions also suffered the same process

of repromulgation from

time to time.

The Bihar Forest

Produce (Regulation of Trade) Third

Ordinance was first promulgated in 1977 and after its expiry, it was

repromulgated several times without it being converted into an Act of

the State Legislature and it continued to be in force until it was re- H

A

13

812 SUPREME COURT REPORTS [1987] 1 S.C.R.

placed by Bihar Act No. 12 of 1984 on 17th May, 1984. So far as the

Bihar Intermediate Education Council Third Ordinance is concerned

it was initially promulgated in

1982 and after its expiry, it was again

repromulgated

by the Governor of Bihar four times with the same

provisions and it was ultimately allowed to lapse on 6th June,

1985, but

then the Bihar Intermediate Education

Council Ordinance, 1985,

was promulgated which contained almost the same provisions as those

contained in the Bihar Intermediate Education Council Third Ordi·

nance. Similarly the Bihar Bricks Supply (Control) Third Ordinance

was initially promulgated in

1979 and after its expiry it was

repro·

mulgated by the Governor of Bihar from time to time and continued to

be in force until

17th May, 1984 when it was replaced by Bihar Act No.

C

13 of 1984. Thus the Bihar Forest

Produce (Regulations of Trade)

Third Ordinance continued to be in force for a period

of more than six

years, the Bihar Intermediate Education

Council Third Ordinance re­

mained in force for a period of more than one year, while the Bihar

Bricks Supply (Control) Third Ordinance was continued in force for a

D period

of more than five years.

The Government of Bihar, it seems, made it a settled practice to

go on repromulgating the ordinances from time to time and this

was.

done methodologically and with a sense of deliberateness.

Imme­

diately at the conclusion of each session of the State Legislature a

E circular letter used to be sent by the Special Secretary in the Depart·

ment of Parliamentary Affairs to all the Commissioners Secretaries,

Special Secretaries, Additional Secretaries and all heads of depart­

ments intimating to them that the session of the Legislature had been

got prorogued" and that under Article 213 Clause (2)(a) of the·

Constitution all the ordinances would cease to be in force after six

F . weeks of the date of reassembly of the Legislature and that they should

th.erefore get

in touch

>yith the Law Department and immediate action

should be initiated to get '"all the wncerned ordinances repromul­

gated .. , so that all thos, ordinances are positively icepromulgated be·

fore the date of their expiry. This circular letter also used to advise the

officers

that if the old ordinances were

repromulgakd in their original

G

II

form without any amendment, the approval of the Council of Ministers

would

not be necessary. The petitioners placed before the Court a

copy

of one such

circular letter dated 29th July. 1w: l and it described

the subject

of the communication as "'regarding repromulgation of

ordinances ... It would be profitable to reproduce this

circular letter

dated 29th July, 198 las it indicates the routine manner in which the

ordinances were repromulgated by the Governor of Bihar:

'

-!

t

)

DR. D.C. WADHWA v. STAIB OF BIHAR [BHAGWATI, CJ.) 813

"Letter No. P.A./Misc. 1040/80-872

GOVERNMENT OF BIHAR

DEPARTMENT OF PARLIAMENTARY AFFAIRS

From: Basant Kumar Dubey

Special Secretary to the Govt.

To: All Commissioners and Secretaries,

All. Special Secretaries.

All Additional Secretaries,

All

Heads of Departments

Patna 15-dated 29th July, 1981

Subject: Regarding re-promulgation of Ordinances.

Sir,

I am directed to say that . the budget Session of the

Legislature (June-July

198 l) has been got prorogued after

the completion of the business of both the houses on July 28, 198 l.

Under the provisions of Art. 2 l3(2)(a) of the

Constitution all the Ordinances cease to be

in force after

six weeks

of the date of the reassembly of the Legislature.

This time the session

of the Legislative Assembly has

begun on June

29, 1981 and that of the Legislative Council

A

B

c

D

E

on

July· l, 1981. Therefore from I. 7. 1981, six weeks, that F

is, -12 days would be completed on 11.8. 1981 and if they are

not repromulgated before the aforesaid date, then

all the

Ordinances will cease to be

in force after

11.8. 198 l.

It is, therefore, requested that the Law Department

may be contacted and immediate action be initiated

to get G

all the concerned Ordinances re-promulgated so that they

are definitely repromulgated before

11.8. 1981.

If the old ordinances are repromulgated in their origi­

nal form without any amendment, then the approval

of the

Council of Ministers

is not necessary. H

A

B

c

D

E

F

G

H

814

SUPREME COURT REPORTS [1987) 1 S.C.R.

This should be given the top-most priority and neces­

sary action should be taken immediately.

Yours faithfully.

Sd/-Basant Kumar Dubey

Special Secretary to Bihar Government.··

This circular letter clearly shows beyond doubt that the repromulga­

tion of the ordinances

was done on a massive scale in a routine manner

without even caring to get the ordinances replaced

by Acts of the

Legislature or considering whether the circumstances existed

which

rendered it necessary for the Governor to take immediate action by

way of repromulgation of the ordinances. The Government seemed to

proceed on the basis that it was not

necessary to introduce any legisla­

tion in the Legislature but that the law could be continued to be made

by the Government

by having the ordinances repromulgated by the

Governor from time to time. The question

is whether this practice

followed by the Government of Bihar could

be justified as

represent­

ing legitimate exercise of power of promulgating ordinances conferred

on the Governor under Article. 213 of the Constitution.

The determination of this question depends on the true interpre­

tation of Article 213 which confers power on the Governor of a State to

promulgate ordinances. This Article

in so far as material, reads as

follows:

"213. ( l) If at any time, except when the Legislative

Assembly of a State

is in session, or where there is a

Legis­

lative Council in a State, except when both Houses of the

Legislature are

in session, the Governor is satisfied that

circumstances exist which render it necessary for

him to

take immediate action,

he may promulgate such

Ordi­

nances as the L;rcumstances appear to him to require.

(2) An Ordinance promulgated under this Article shall

have the same force and effect

as an Act of the Legislature

of the State assented to

by the Governor, but every such

Ordinance-

(a) shall be laid before the Legislative Assembly of the

State, or where there

is a Legislative Council in the State,

before both the Houses, and shall cease to operate at

th~

+

)

DR. D.C. WADHWA v. STAIB OF BlliAR IBHAGWATI, CJ.] 815

expiration of six weeks from the reassembly of the Legisla-A

ture, or if before the expiration of that period a resolution

disapproving it is passed

by the Lagislative Assembly and

agreed to by the Legislative Council, if any, upon the pas­

sing of the resolution or, as the case may be, on the resolu­

tion being agreed to

by the Council, and

(b) may be withdrawn at any time

by the Governor.

Explanation-Where the Houses of the Legislature of a

State having a Legislative Council are summoned to re­

assemble on different dates, the period of

six weeks shall

B

be reckoned from the later of these dates for the purposes C

of this clause

.......................................

"

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 D .

authority under the Constitution

is the Legislature and not the Execu-

tive

but it is possible that when the Legislature is not in

Session

circumstances may arise which render it necessary to take immediate

action and

in such a case in order that public interest may not suffer by

reason of the inability of the Legislature to make law to deal with the

emergent situation, the Governor

is vested with the power to promul-E

gate Ordinances. But every Ordinance promulgated

by the Governor

must be placed before the Legislature and it would 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

(he Legislative

Council, if any. The object of this provision

is that since the power F

conferred on the Governor to issue Ordinances

is an emergent power

exercisable when the Legislature is not

in Session, an

Ordinance pro­

mulgated by the Governor to deal with a situation which requires im­

mediate action and which cannot wait until the legislature reassem-

bles, must necessarily have a limited life. Since Article 17-l enjoins that

the Legislature shall meet at least twice

in a year

but six months shall G

not intervene between its last sitting in one session and the date

appointed for its first sitting

in the next

Session and an Ordinance

made by the Governor must cease to operate at the expiration of

six

weeks from the reassembly of the Legislature, it is obvious that the

maximum life of

an Ordinance cannot exceed seven and a half months

unless it is replaced

by an Act of the Legislature or disapproved by the H

816 SUPREME COURT REPORTS 11987] 1 S.C.R.

resolution of the Legislature before the expiry of that period. The

A power

to promulgate an Ordinance is essentially a power to be used to

meet an extra-ordinary situation and it cannot

be allowed to be

"perverted to serve political ends." It is contrary to all democratic

norms that the Executive should have the power to make a law, !/ut in

B

c

D

E

F

G

H

order to meet an emergent situation, this power is conferred on the

Governor and an Ordinance issued by the Governor

in exercise of this

power must, therefore, of necessity be limited

in point of time. That is

why it is provided that the Ordinance shall cease to operate on the

expiration of

six weeks from the date of assembling of the Legislature.

The Constitution makers expected that if the provisions of the Ordi­

nance are to be continued in force, this time should be sufficient for

the Legislature to pass the necessary Act. But if within this time the

Legislature does not pass such

an Act, the Ordinance must come to an

end. The Executive cannot continue the provisions of the Ordinance in

force without going to the Legislature. The law-making function is

entrusted by the Constitution to the Legislature consisting of the re-

pr.esentatives of the people and if the Executive were permitted to

continue the provisions of an Ordinance

in force by adopting the

methodology of repromulgation without submitting to the voice of the

Legislature, it would be nothing short of usurpation

by the Executive

of the law-making function of the Legislature. 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. The Government

cannot by-pass the Legislature and without enacting the provisions of

the Ordinance into an Act of the Legislature, repromulgate the Ordi-

nance as soon as the Legislature

is prorogued.

Of course, there may be

a situation where it may not be possible for the Government to intro­

duce and push through

in the Legislature a Bill containing the same

provisions as in the Ordinance, because the Legislature

may have too

much legislative business

in a particular

Session or the time at the

disposal of the Legislature

in a particular

Session may be short, and in

that event, the Governor may legitimately find that it is necessary to

repromulgate the Ordinance. 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. It is settled law that a constitutional authority can-

t

•-A

DR. D.C. WADHWA v. STAIB OF BIHAR [BHAGWATI, CJ.] 817

not do indirectly what it is not permitted to do directly. If there is a

A

constitutional provision inhibiting the constitutional authority from

doing an Act, such provision cannot be allowed to be defeated

by

adoption of any subterfuge. That would be clearly a fraud on the

constitutional provision. This

is precisely what was pointed out by

• ~

Mukharji, J. speaking for the Court in K.C. Gajapati Narayan Deo &

Ors. v. StateofOrissa, [1954] 1SCR1: B

"In other words, it is the substance of the Act that is mate-

,~ rial and not merely the form or outward appearance, and if

the subject matter in substance

is

spmething which is

beyond the powers of that legislature to legislate upon, the

form in which the law

is. clothed would not save it from

c J,. condemnation. The legislature cannot violate the constitu-

tional prohibitions by employing an indirect

method."

So also in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras

& Anr., [1965] 1SCR614 a Constitution Bench of this Court observed

that when it is said that Legislation is a colourable one, what it means D

is that the Legislature has transgressed its legislative power in a covert

or indirect manner, if it adopts a device to outstep the limits of its

'

power. When the constitutional provision stipulates that an Ordinance

~-promulgated by the Governor to meet an emergent situation. shall

cease to be in operation

at the expiration of six weeks from the reas-

sembly

of the Legislature and the Government if it wishes the provi-E

sions

of the Ordinance to be continued in force beyond the period of

t

six weeks has to go before the Legislature which is the constitutional

authority entrusted with the law making function, it would most cer-

tainly be a colourable exercise of power for the Government to ignore

the Legislature and to repromulgate the Ordinar.ce and thus to con-

tinue to regulate the life and liberty of the citizens through Ordinance F

( made by the Executive.

Such a strategem would be repugnant to the

constitutional scheme as it would enable the Executive to transgress its

constitutional limitation in the matter of law making in an emergent

situation and to covertly and indirectly arrogate to itself the law

making function of the Legislature. Shri Lal Narain Sinha, appearing

~

on behalf of the State of Bihar urged that the Court is not entitled to G

examine whether the conditions precedent for the exercise of the

power

of the Governor under Article 213 existed or not, for the

purpose

of determining the validity of an Ordinance and in support of

this proposition, he strongly relied upon the decisions reported in

Bhagat Singh

&

Ors. v. Empire, AIR 1931PC111, Rajaram Bahadur

Kamlesh Narain Singh

v. Commissioner of Income Tax, AIR 1943

PC H

818 SUPREME COURT REPORTS [1987] 1 S.C.R.

A 153; Laxmidhar Misra

v. Rangalal &

Ors., AIR 1950 PC 59 and 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. It is

true that, according to the decisions of the

Privy Council and this

B Court, the Court cannot examine the question of satisfaction of the

Governor in issuing an Ordinance, but the question in the present case

does not raise any controversy

in regard to the satisfaction of the

Governor. The only question

is whether the Governor has power to

repromulgate the same

Ordinance successively without bringing it be­

fore the Legislature. That clearly the Governor cannot do. He cannot

assume legislative function in excess of the strictly defined limits set

C

out in the Constitution because otherwise he would be usurping a

function which does not belong to him.

It is significant to note that so

far as the President of India is concerned, though he has the same

power

of issuing an

Ordinance under Article 123 as the Governor has

under Article 213, there is not a single instance

in which the President

D has, since

1950 till today, repromulgated any Ordinance after its ex­

piry.

The startling facts which we have narrated above clearly show

that the Executive in Bihar has almost taken over

the· role of the

Legislature

in making laws, not for a limited period, but for years

together in disregard of the constitutional limitations. This

is clearly

contrary to the constitutional scheme and it must be held to be impro­

per and irvalid. We hope and trust that such practice shall not be

E continued in the future and that whenever

an

Ordinance is made and

the Government wishes

to continue the provisions of

the Ordinance in

force after the assembling of the Legislature, a Bill will be brought

before the Legislature for enacting those provisions into

an Act. There

must not be

Ordinance-Raj in the country.

F

We must accordingly strike down the Bihar Intermediate Educ:,­

tion Council Ordinance, 1983 which is still in operation as unconstitu­

tional and void. Petitioner No. 1 has done enormous research and

brought this reprehensible practice of the Government of Bihar to the

notice of the Court and

we would therefore direct that the State of

G Bihar shall pay to Petitioner No. l a

.sum of Rs.

10,000 (rupees ten

thousand only) as and by

way of cost of the writ petitions.

M.L.A. Petitions allowed.

i

I

"""