D.C WADHWA V. STATE OF BIHAR

 

D.C WADHWA V. STATE OF BIHAR

(1987) 1 SCC 378

 

JUDGES

 

1.     Former Chief Justice of India P.N Bhagwati

2.     Justice Rangnath Mishra

3.     Justice G.L. Oza

4.     Justice M.M Dutt

5.     Justice K.N Singh

 

 

FACTS OF THE CASE

The writ petition was filed by four petitioners challenging the practice of the State of Bihar in promulgating and repromulgating ordinances on a large scale. They particularly challenged the constitutional validity of three different ordinances issued by the Governor of Bihar- (i) 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.

The Governor of Bihar had been indulging in the practice of repromulgating the ordinances issued by him from time to time so as to keep them alive for an indefinite period of time. The power which was given to the Government under Article 213 of the Constitution was being used blatantly to issue ordinances on a mammoth scale. After the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were repromulgated containing the same provisions almost in a routine and deliberate manner. From the period between 1967 and 1981, the Governor of Bihar promulgated 256 ordinances and all of them were kept alive for periods ranging from 1-14 years by repromulgation from time to time.

 

ISSUE

1.     Whether the petitioners had any locus standi in maintaining the writ petition and challenging the re-promulgation of ordinances?

2.     Can the Governor go on repromulgating Ordinances for an indefinite period of time and thus take over the power of the legislature to legislate, thus abusing the powers given to him under Article 213 of the Constitution.

 

JUDGMENT

With respect to the first issue, former Chief Justice of India P.N Bhagwati clarified that as members of the intellectual community and as members of the public in general, the petitioners had sufficient interest in maintaining a petition under Article 32 of the Constitution. The Court said that it is the right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not by the executive in violation of the constitutional provisions.

With respect to the second issue, the Court proceeded to interpret the true meaning of Article 213 of the Constitution which confers power on the Governor of a State to promulgate ordinances. It was deciphered that the power given to the Governor to issue ordinances is in the nature of an emergency power. It is to be exercised by him only when immediate action is necessary and the legislature is not in session. Also, every ordinance promulgated by the Governor must be presented before the legislature within six weeks of reassembly of the legislature. An ordinance would cease to exist at the expiration of these six weeks or if before the expiration of that period a resolution is passed by the Legislative Assembly disapproving it.

The Court emphasized that the power to promulgate an ordinance is the one to be used to meet extraordinary situations and thus it cannot be allowed to be perverted to serve political ends. It is contrary to all democratic practices that the executive should have the power to make a law. It is only in emergent situations that the Governor must use his power of issuing ordinances and thus such an ordinance must of necessity be limited in point of time.

The Government cannot bypass the legislature and without enacting the provisions of the ordinance into an Act of the legislature, repromulgate the ordinance as soon as the House is prorogued. Adopting a method of repromulgation without submitting to the voice of the Legislature was held to be a usurpation by the executive of the law-making function of the Legislature. It was held to be a colourable exercise of legislation.

The Court prohibited ordinance-Raj in the country and thus struck down the ordinances as unconstitutional and void.

 

CONCLUSION

The primary law-making authority under the Constitution is the legislature and not the executive. The Constitution provides several provisions to ensure a definitive separation of powers between these two organs of the government. But there may arise such circumstances and situations, for e.g., when the legislature is not in session, in which it is necessary toimmediate action in order to preserve the public interest. Here due to the inability of the legislature, the Governor is vested with the power to promulgate ordinances. He must act in strict accordance with the provisions of the Constitution and cannot assume the legislative function in excess of the strictly defined limits set out in the Constitution because otherwise, he would be usurping a function that does not belong to him.