DR D. C. WADHWA VS. STATE OF BIHAR : CASE SUMMARY

The Supreme Court in Dr. D. C. Wadhwa Vs. State of Bihar (1987) AIR 579  held that Governor cannot promulgate ordinance under Article 213  successively without submitting  the same to Legislature.

FACTS OF THE CASE

The Governor of Bihar was promulgating and re-promulgating ordinances on massive scale.  The Governor promulgated 256 ordinances between 1967 to 1981 and all these ordinances were kept alive for periods ranging between 1 to 14 years by repromulgation from time to time. Out of 256 ordinances 69 were repromulgated several times and kept alive with prior permission of President. Several ordinances were surviving for more than 10 years.

Power to promulgate ordinances was being   used by Government of Bihar on large scale and after session of the State Legislature was prorogued, the same ordinances which had ceased to operate used to  re-promulgated containing substantially the same provisions almost in a routine manner.

Repromulgation of ordinances were done on a massive scale in a routine manner without even caring to get the ordinance replaced by Acts of the Legislature or considering whether circumstances existed which rendered it necessary for the Governor to take immediate action by way of repromulgation of ordinance.

Three of these ordinances were challenged before the Supreme Court under Article 32 of the Constitution of India.

FINDINGS OF THE SUPREME COURT

The issue before the Supreme Court was whether this practice of the Government of Bihar was legitimate exercise of power under Article 213 of the Constitution.

The Supreme Court observed that the power conferred on Governor to issue ordinances is in nature of an emergency power which is vested in Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in session.  The primary law making authority under the Constitution is Legislature and not the Executive. When legislature is not in session circumstances may arise which render it necessary to take immediate action and in such a case in order that Public Interest may not suffer by reason of inability of the legislature to make law to deal with emergent situation, the Governor is vested with the power to promulgate ordinance. Every ordinance has to be placed before the Legislature and it ceases to have effect after expiration of six weeks from re-assembly of Legislature or before expiration of that period if assembly disapproves it by a resolution.

The object of Article 213 is that since the power to issue ordinance conferred on Governor is an emergent power exercisable when Legislature is not in session, such ordinance should have limited life.

The Supreme Court observed that since Article 174 provides 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 meeting in the next session and an ordinance made by the Governor must cease to operate at the expiration of six weeks from the re-assembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and half months unless it is replaced by an Act of the Legislature or disapproved by the 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.

The Executive cannot continue the provisions of the ordinance in force without going to the Legislature. The law making function has been entrusted to Legislature. If the executive is permitted to continue the provisions of an ordinance in force  by re-promulgation without submitting to the Legislature, it would be nothing sort of usurpation by executive of law making functions.

There may be a situation when where it may not be possible for the Government to introduce and push through in the Legislature a bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular session or the time at the disposal of the Legislature in a particular Session may be short, and in that event the Governor may legitimately find that it is necessary to re-promulgate the ordinance. But otherwise it would be colorable exercise of power to continue an ordinance beyond the period specified by Constitution by adopting methodology of re-promulgation.

The Supreme Court observed that it is a settled law that 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 allowed to be defeated by adoption of any subterfuge. That will be clearly a fraud on the Constitutional provision.

The Supreme Court observed that 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 re-assembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature which is the constitutional authority entrusted with the law making function, it would most certainly be a colorable exercise of power for the Government to ignore the Legislature and to repromulgate the ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance made by the Executive. Such a stratagem would be repugnant to the constitutional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the lawmaking function of Legislature.

The Supreme Court struck the Bihar Intermediate Education Council Ordinance, 1983 which was as yet in force.  

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