http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16

PETITIONER:

DR. D.C. WADHWA & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR & ORS.

DATE OF JUDGMENT20/12/1986

BENCH:

BHAGWATI, P.N. (CJ)

BENCH:

BHAGWATI, P.N. (CJ)

MISRA RANGNATH

OZA, G.L. (J)

DUTT, M.M. (J)

SINGH, K.N. (J)

CITATION:

1987 AIR 579 1987 SCR (1) 798

1987 SCC (1) 378 JT 1987 (1) 70

1986 SCALE (2)1174

ACT:

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 Legis-

lature--Scope of--Whether a colourable exercise of power,

repugnant to the constitutional scheme.

HEADNOTE:

The State of Bihar adopted a practice of repromulgating

the ordinances on a massive scale from time to time without

their provisions being enacted into acts of the legislature.

The practice was that, after the session of the State Legis-

lature was prorogued, the same ordinances which had ceased

to operate were repromulgated containing substantially 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 differ-

ent ordinances issued by the Governor of Bihar, namely, (1)

Bihar Forest Produce (Regulation of Trade) Third Ordinance

1983; (ii) The Bihar 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.

Petitioner No. 1, a Professor of Economics in Gokhale

Institute of Politics and Economics, Pune carried out thor-

ough and detailed research in the matter of repromulgation

of Ordinances by the Governor of Bihar from time to time and

filed the present writ petition as he was interested in the

preservation and promotion of constitutional functioning of

the administration in the country. Petitioner Nos. 2, 3 and

4 were affected by the provisions of the aforesaid Ordi-

nances mentioned at serial no. (i) (ii) and (iii) respec-

tively. The provisions of two out of the 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 incorpo-

rating the provision of this Ordinance is pending considera-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16

tion before the State Legislature and it has been referred

to the Select Committee.

799

Counsel for the Respondent-State opposed the writ

petitions contending: (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 enact-

ing its provisions into an 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 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: (1) The Bihar Intermediate Education Council

Ordinance 1983 which is still in operation is struck down as

unconstitutional and void. The Governor cannot assume legis-

lative function in excess of the strictly defined limits set

out in the Constitution because otherwise he would be usurp-

ing a function which does not belong to him. [818F-G]

In the instant case, 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 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 in force after the assembling of

the Legislature, a Bill will be brought before the Legisla-

ture for enacting those provisions into an Act. There must

not be Ordinance--Raj in the country. [818D-F]

2(1) The rule of law constitutes the core of the Con-

stitution of India 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 in flagrant

and systematic violation of its constitutional limitations,

petitioner No. 1 as a member of the public would have suffi-

cient interest to challenge such practice by filing a writ

petition and it would be the constitutional duty

800

of the Supreme Court to entertain the writ petition and

adjudicate upon the validity of such 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 consti-

tutional validity. Moreover, the question 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-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-promulgate ordinances will remain unde-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16

termined. [805F-H]

S.P. Gupta & Ors. v. Union of India & Ors., [1982] 2 SCR

365, referred to.

3(1) The power conferred on the Governor to issue Ordi-

nances 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 Legisla-

ture is not in session. [815C-D]

3(2) The primary law making authority under the Consti-

tution is the Legislature and not the Executive but it is

possible that when the Legislature is not in session, cir-

cumstances 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 promulgate ordi-

nances. 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 Legis-

lative 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 an emergent

power exercisable when the Legislature is not in session, an

Ordinance promulgated by the Governor to deal with situation

which requires immediate action and which cannot wait until

the legislature reassembles, must necessarily have a limited

life. [815D-G]

3(3) The power to promulgate an Ordinance is essentially

a power to be used to meet an extraordinary situation and it

cannot be

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 emer-

gent 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 Ordinance are

to be continued in force, six weeks time should be suffi-

cient 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 emer-

gency 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 by 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 in an Act of the Legislature, 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

constitutional provision inhibiting the constitutional

authority from doing an act, such provision cannot be al-

lowed to be defeated by adoption of any subterfuge. That

would be clearly a fraud on the constitutional provision.

[816H; 817A-B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16

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 au-

thority 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 Execu-

tive. Such a stratagem would be repugnant to the constitu-

tional scheme, as it would enable the Executive to trans-

gress its constitutional limitation in the matter of law

making in an emergent situation and to covertly and indi-

802

rectly arrogate to itself the law making function of the

Legislation. [ 817D-G]

5. 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 before the Legis-

lature. That clearly the Governor cannot do. [818B-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, inap-

plicable.

JUDGMENT:

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. 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 Constitution 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 Legislature

to legislate though that power is conferred on him under

Article 213 only for the purpose of enabling him to take

immediate action at a 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 Legisla-

ture 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

challenging the validity of the practice of the State of

Bihar in promulgating

803

and re-promulgating ordinances on a massive scale and in

particular they have challenged the constitutional validity

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16

of three different ordinances 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. 1 is a professor of economics is the Gokhale Institute

of Politics and Economics, 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 administra-

tion in the country. He has made a deep and profound study

of the practice which is being followed in the State of

Bihar of promulgating and re-promulgating ordinances from

time to time without enacting them into Acts of the Legisla-

ture. Petitioner No. 2 is an occupancy Raiyat of village

Anigara, Kunti Police Station in the district 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 ordi-

nance 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 provi-

sions in the Bihar Forest Produce (Regulations of Trade)

Third Ordinance was that petitioner No. 2 was 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 Intermedi-

ate Education Council Third Ordinance. It is not necessary

to refer to the provisions of this ordinance since it could

not be seriously disputed on behalf of the respondents 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 chal-

lenged the constitutional validity of this ordinance. Simi-

larly petitioner No. 4 was aggrieved by the Bihar Brick

Supply (Control) Third Ordinance because he is the proprie-

tor of South Bihar Agency, Patna, a brick manufacturing

concern 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

804

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

petitioners had no locus standi to maintain this writ peti-

tion since out of the three ordinances challenged on behalf

of the petitioners, two of them, namely, Bihar Forest Pro-

duce (Regulations of Trade) Third Ordinance, 1983 and the

Bihar Bricks Supply (Control) Third Ordinance, 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

concerned, a legislative proposal was already introduced for

enacting its provisions into an Act. The respondents also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16

contended that the petitioners are not entitled to challenge

the practice prevalent in the State of Bihar of repromulgat-

ing ordinances from time to time since they were merely

outsiders who had no legal interest to challenge the validi-

ty of this practice. We do not think this preliminary objec-

tion 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 incorpo-

rating the provisions of this ordinance is pending consider-

ation 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 peti-

tioner No. 1 is a Professor of Political Science and is

deeply interested in ensuring proper implementation of the

constitutional provisions. He has sufficient interest to

maintain a petition under 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 particu-

lar ordinance was being challenged by petitioner No. 1 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 violated or threatened by such ordinance, but here

what petitioner No. 1 has a member of the public is com-

plaining of is a practice which is being followed by the

State of Bihar of re-promulgating the ordinances

805

from time to time without their provisions being enacted

into Acts of the Legislature. It is clearly for vindication

of public interest that petitioner No. 1 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 enforce-

ment of such public duty and observance of such constitu-

tional or legal provision."

The rule of law constitutes 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 con-

stitutional limitations and if any practice is adopted by

the Executive which is inflagrant and systematic violation

of its constitutional limitations, petitioner No. 1 as a

member 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 conten-

tion raised on behalf of the respondents challenging the

locus of the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16

academic in nature and should not be adjudicated upon by the

Court. But this contention urged on behalf of the respond-

ents is also without force since the Bihar 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 petitions is of highest con-

stitutional 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 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 limita-

tions on the power of the Governor to re-promulgate ordi-

nances 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

806

his power to repromulgate ordinances from time to time.

We shall now proceed to state how the Governor in the

State of Bihar has been indulging in the practice of repro-

mulgating the ordinances 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 Governor of Bihar

from time to time and the result of this research was com-

piled by him and published in a book entitled "Repromulga-

tion of Ordinances: Fraud on the Constitution of India".

Some of the relevant extracts from this book have been

annexed to the writ petition indicating the number of ordi-

nances 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

between 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 Presi-

dent of India. The following table would indicate the cate-

gorisation of these 256 ordinances by reference to their

life groups:--

Life-Groups Number of

(Years) Ordinances

Upto 1 59

1--2 51

2--3 45

3--4 21

4--5 21

5--6 21

6--7 11

7--8 8

8--9 4

9-- 10 4

10--11 6

11--12 4

12--13 ----

13-- 14 1

----

Total 256

The enormity of the situation would appear to be startling

if we have a look at some of the ordinances which were

allowed to continue in force

807

by the methodology of repromulgation. The following table

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16

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 Date on which Life of the

No. First Ordinance

Promulgated

1 2 3 4

Year Months Days

i. The Bihar Sugarcane 13.11.1968 13 11 19

(Regulation of Supply

and Purchase) Ordinance

1968 (Ordinance No. 3 of

1968)

ii. The Bihar Panchayati 14.8.1970 11 4 18

Raj (Amending and

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)

iv. The State Aid to 10.9.1970 11 3 21

Industries (Amendment)

Ordinance, 1970 (Ordi-

nance No. 8 of 1970)

v. The Bihar Bihar Khadi and 17.9.1970 11 3 14

Village Industries

(Amendment) Ordinance,

1970 (Ordinance No. 9

of 1970)

vi. The Bihar Soil and Water 10.2.1971 10 10 19

Conservation and Land

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. 54 of 1971)

808

viii. The Bihar Municipal 20.5.1971 10 7 12

(Third Amendment)

Ordinance, 1971 (Ordi-

nance No. 57 of 1971)

ix. The Patna Municipal 22.5.1971 10 7 10

Corporation (Amendment)

Ordinance, 1971

(Ordinance No. 58 of 1971)

x. The Bihar State Housing 14.9.1971 10 3 17

Board Ordinance, 1971

(Ordinance No. 101 of 1971)

xi. The Bihar Co-operative 7.10.1971 10 2 25

Societies (Second Amend-

ment) Ordinance, 1971

(Ordinance No. 103 of 1971)

xii. The Bihar Agricultural 14.12.1972 9 10 16

Produce Markets (Amend-

ment) Ordinance, 1972

(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)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16

xiv. The Rajendra Agricultural 15.1.1973 8 11 17

University (Amendment)

Ordinance, 1973

(Ordinance No. 2 of 1973)

xv. The Bihar Panchayati 22.2.1973 8 10 7

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

Ordinance, 1973

(Ordinance No. 6 of 1973)

xvii. The Bihar Khadi and 1.10.1973 8 3 0

Village Industries

(Amendment) Ordinance,

1973 (Ordinance No. 122

of 1973)

809

xviii. The Motor Vehicles 20.5.1971 7 8 17

(Bihar Amendment) Ordi-

nance, 1971 (Ordinance

No. 56 of 1971)

xix. The Bihar State Aid to 27.4.1977 7 8 4

Industries (Second Amend-

ment) Ordinance, 1974

(Ordinance No. 56 of 1974)

xx. The Bihar Irrigation Laws 27.8.1974 7 4 3

(Amendment)

Ordinance, 1974

(Ordinance No. 169 of 1974)

xxi. The Bihar Irrigation Field 29.8.1974 7 4 3

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)

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)

xxiv. 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

lopment Authority Ordi-

nance, 1974 (Ordinance

No. 175 of 1974)

xxvi. The Chota Nagpur and 29.10.1974 6 2 3

Santhal Parganas Autono-

mous Development Autho-

rity (Fifth Amendment)

Ordinance, 1975 (Ordi-

nance No. 197 of 1975)

xxvii. The Bihar Motor Vehicle 29.11.1975 6 1 2

Taxation (Fifth Amendment)

Ordinance, 1975 (Ordi-

nance No. 207 of 1975)

810

xxxviii. The Bihar Case (Amend- 2.12.1975 6 1 0

ment) Ordinance, 1975

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16

(Ordinance No. 209 of 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. 214 of 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 repro-

mulgated containing substantially the same provisions almost

in a routine manner. This would be clear from the fact that

on 26th August, 1973 the Governor of Bihar repromulgated 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 provisions. Then again on 23rd July,

1974, 51 ordinances were repromulgated 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 ordinances

were repromulgated containing substantially the same provi-

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

and on 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 11th 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 rePromul-

gated in order to keep its provisions in force:

811

Name of Date of first Last date How many Total

the Ordi- promulgation of re-pro- times period

nance mulgation re-pro- of the

mulgated life of

ordinance

1 2 3 4 5

1. The Bihar 13.1.68 12.8.81 39 about 14 years

Sugarcane

(Regulation

of supply and

Purchase)

Ordinance,

1968.

2. The Bihar 14.8.70 19.1.81 35 about 12 years

Panchayat Raj

(Amending and

Validating)

1970.

3. The Bihar 5.9.70 22.4.81 37 about 12 years

Hindu Reli-

gious Trusts

(Amendment)

Ordinance,

1970.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16

4. The Bihar 10.9.70 23.4.81 34 about 12 years

State Aid to

Industries

(Amendment)

1970.

5. The Bihar 17.9.70 19.1.81 35 about 12 years

Khadi and

Village

Industries

(Amendment)

1970.

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

812

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 ulti-

mately 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 Ordinance. Similarly the Bihar Bricks Supply (Control)

Third Ordinance was initially promulgated in 1979 and after

its expiry it was repromulgated 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. 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 remained in force for a period of more than one

year, while the Bihar Bricks Supply (Control) Third Ordi-

nance was continued in force for a 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. Immediately at the conclusion of each ses-

sion of the State Legislature a circular letter used to be

sent by the Special Secretary in the Department of Parlia-

mentary Affairs to all the Commissioners Secretaries, Spe-

cial Secretaries, Additional Secretaries and all heads of

departments 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 weeks of the date of

reassembly of the Legislature and that they should therefore

get in touch with the Law Department and immediate action

should be initiated to get "all the concerned ordinances

repromulgated", so that all those ordinances are positively

repromulgated before the date of their expiry. This circular

letter also used to advise the officers that if the old

ordinances were repromulgated in their original 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,

1981 and it described the subject of the communication as

"regarding repromulgation of ordinances". It would be prof-

itable to reproduce this circular letter dated 29th July.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16

1981 as it indicates the routine manner in which the ordi-

nances were repromulgated by the Governor of Bihar:

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 Secre-

taries, 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 1981) has been got prorogued after

the completion of the business of both the houses on July

28, 1981.

Under the provisions of Art. 213(2)(a) of the Consti-

tution 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 on July 1,

1981. Therefore from 1.7. 1981, six weeks, that is, 42 days

would be completed on 1 1.8.1981 and if they are not repro-

mulgated before the aforesaid date, then all the Ordinances

will cease to be in force after 11.8.1981.

It is, therefore, requested that the Law Department

may be contacted and immediate action be initiated to get

all the concerned Ordinances re-promulgated so that they are

definitely repromulgated before 11.8.1981.

If the old ordinances are repromulgated in their

original form without any amendment, then the approval of

the Council of Ministers is not necessary.

814

This should be given the top-most priority and

necessary 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

repromulgation of the ordinances was done on a massive scale

in a routine manner without even caring to get the ordi-

nances replaced by Acts of the Legislature or considering

whether the circumstances existed which rendered it neces-

sary 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 legislation in the Legislature but that the law could be

continued to be made by the Government by having the ordi-

nances repromulgated by the Governor from time to time. The

question is whether this practice followed by the Government

of Bihar could be justified as representing 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

interpretation 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. (1) If at any time, except when the Legislative Assem-

bly of a State is in session, or where there is a Legisla-

tive 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 Ordinances as

the circumstances appear to him to require.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16

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

(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 Ordi-

nance--

(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 the

815

expiration of six weeks from the reassembly of the Legisla-

ture, or if before the expiration of that period a resolu-

tion disapproving it is passed by the Legislative Assembly

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

passing of the resolution or, as the case may be, on the

resolution 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 reassemble on

different dates, the period of six weeks shall be reckoned

from the later of these dates for the purposes 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 authority under the Consti-

tution is the Legislature and not the Executive but it is

possible that when the Legislature is not in Session circum-

stances may arise which render it necessary to take immedi-

ate 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 Gover-

nor is vested with the power to promulgate 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 Legisla-

ture 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 an emergent power exercisa-

ble when the Legislature is not in Session, an Ordinance

promulgated by the Governor to deal with a situation which

requires immediate action and which cannot wait until the

legislature reassembles, must necessarily have a limited

life. Since Article 174 enjoins that the Legislature shall

meet at least twice in a year but six months shall 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

816

resolution of the Legislature before the expiry of that

period. The 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, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16

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 Ordinance 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 representatives 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 enact-

ing the provisions of the Ordinance into an Act of the

Legislature, repromulgate the Ordinance as soon as the

Legislature is prorogued. Of course, there may be a situa-

tion where it may not be possible for the Government to

introduce and push through in the Legislature a Bill con-

taining 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 Legis-

lature in a particular Session may be short, and in that

event, the Governor may legitimately find that it is neces-

sary 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 repro-

mulgation. It is settled law that a constitutional authority

can-

817

not do indirectly what it is not permitted to do directly.

If there is a constitutional provision inhibiting the con-

stitutional authority from doing an Act, such provision

cannot be allowed to be defeated by adoption of any subter-

fuge. That would be clearly a fraud on the constitutional

provision. This is precisely what was pointed out by Muk-

harji, J. speaking for the Court in K.C. Gajapati Narayan

Deo & Ors. v. State of Orissa, [1954] 1 SCR 1:

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

material and not merely the form or outward appearance, and

if the subject matter in substance is something which is

beyond the powers of that legislature to legislate upon, the

form in which the law is. clothed would not save it from

condemnation. The legislature cannot violate the constitu-

tional prohibitions by employing an indirect method."

So also in P. Vajravelu Mudaliar v. Special Deputy Collec-

tor, Madras & Anr., [1965] 1 SCR 614 a Constitution Bench of

this Court observed that when it is said that Legislation is

a colourable one, what it means 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16

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 au-

thority 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 Execu-

tive. Such a strategem would be repugnant to the constitu-

tional 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 arro-

gate 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 examine wheth-

er 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

1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh v. Com-

missioner of Income Tax, AIR 1943 PC

818

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 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 satis-

faction of the Governor. The only question is whether the

Governor has power to repromulgate the same Ordinance suc-

cessively 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. 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 has, since 1950

till today, repromulgated any Ordinance after its expiry.

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 constitu-

tional limitations. This is clearly contrary to the consti-

tutional scheme and it must be held to be improper and

invalid. We hope and trust 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 in force after the assembling of the Legisla-

ture, a Bill will be brought before the Legislature for

enacting those provisions into an Act. There must not be

Ordinance--Raj in the country.

We must accordingly strike down the Bihar Intermediate

Education Council Ordinance, 1983 which is still in opera-

tion as unconstitutional 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16

would therefore direct that the State of Bihar shall pay to

Petitioner No. 1 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.

819