Locus Classicus: DC Wadhwa and Repromulgation of Ordinance
In a series of posts, I wish to discuss and mention the various classic decisions of the Supreme Court which have seriously influenced the development of Indian jurisprudence. One such judgement is that of the Supreme Court in Dr D.C Wadhwa & Ors v State Of Bihar (1987) 1 SCC 378 (Supreme Court of India)
Facts
Prof. D.C Wadhwa was a reputed researcher from Pune, who was researching about the Bihar Government's practice of repromulgating ordinances without enacting the Act through the Legislature
A PIL was preferred by the Petitioner 1 (D.C Wadhwa) asking the Court to determine whether repromulgation of ordinances is permitted within the scheme of Art. 213 and 123.
Contentions Raised
It was argued by the Respondent's that there is no locus to question the validity of the Ordinances as some of them have already been lapsed (four ordinances were questioned). The Court dismissed this argument on the grounds that questions was not with regards to the validity of the ordinance but the methodology of constant repromulgation which was used by the Bihar Government.
Counsel appearing for Bihar further argued that the Court does not have the competency to look into the question of whether the Governor's satisfaction existed or not in the exercise of Art. 213. This was also dismissed on grounds of irrelevancy.
Reasoning
The Court held that the Government of Bihar used the powers under 213 on a large scale bordering complete and utter misuse through routine repromulgation. They held that the act was a fraud on the Constitution.
The Court observed that the power to promulgate ordinances is an emergency provision, that makes sure that the process of governance does not halt due to the prorogation of the House. This power is thus specifically intended to be used when 'circumstances exist which render it necessary for him to take immediate action' (art. 213 cl. 1).
As per cl. 1(a) the Ordinance shall be laid before the Legislative Assembly. This provisions is present precisely because the emergency power to usurp the competency of the Assembly must be limited and subject to review by the Assembly. In this regard the Court held that the Executive cannot by taking regard to a emergency provision take over the law making function of the Parliament or Assembly. The Government intends to bypass the Legislature without enacting the provisions of the Act.
There must be situations where the Assembly may not be able to consider the question of the Ordinance altogether. The Assembly may have too much legislative business, the time at the disposal of the House may be short. These are not exhaustive declarations and indicate that the repromulgation for bona fide purposes is permitted as the principles of governance must be a balance of both pragmatism and principle. But when these circumstances are not in place i.e. it is not bona fide, it must be classified as a colourable exercise of power.
What the Government cannot do directly it cannot do indirectly. The Court read K.C Gajapati Narayan Rao which stated that 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 effect the validity of its provisions. The constitutional prohibitions cannot be invalidated by employing an indirect method.
There are two limitation, one with respect to it being presented in the House, the other with respect to its limited life span. Both these limitations indicate that the power intended to be controlled its use was supposed to be for a limited period and for limited reasons. In light of these express limitations the repromulgation by the Bihar Government was held to be a colourable exercise of power and the Ordinances in question were struck down.
Ratio
- No Government has the right to repromulgate ordinances except in certain explicit circumstances where it was difficult for the Executive to put the Ordinance before the Legislature for their consideration.