Dr. D.C. Wadhwa & Ors Vs. State of
Bihar & Ors [1986] INSC 283 (20 December 1986)
BHAGWATI, P.N. (CJ) 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- 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- 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]
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.
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 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 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 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 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) 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 (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.
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.
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.
........................................................
(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 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 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 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.
Back
