Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors (1987) AIR 579, (1987) SCR (1) 798

DR. D.C. WADHWA & ORS V. STATE OF BIHAR & ORS

ISSUE:

Whether the Governor can mechanically re-promulgate the ordinance for an indefinite period of time, and thus take over the power (from the legislature) to legislate through the powers conferred on him under Article 213 of the Constitution of India?
Whether the petitioners have a legal standing to challenge the validity of the re-promulgation of the ordinances?

RULE:

Article 213 of the Constitution of India states that “In the event of a lapse in legislative action, the governor retains the authority to issue executive orders.”
The Governor of a State may publish such Ordinance as the circumstances seem to necessitate at any time, except during the session of the Legislative Assembly of a State or, if there is a Legislative Council in a State, except during the session of both Houses of the Legislature to an extent that:
(a) The introduction of a Bill with identical provisions into the Legislature would have required the prior sanction of the President under this Constitution, or
(b) The Governor would have deemed it necessary to reserve a Bill with identical provisions for the consideration of the President, the Governor shall not, without instructions from the President, promulgate any such Ordinance.

FACTS:

The Petitioner was an economics professor researching land tenures in the Indian state of Bihar, according to the available evidence in the case. A total of around 256 ordinances were enacted in the State of Bihar between 1967 and 1980, which he brought to the Court’s attention.
By periodically re-promulgating them, these regulations remained in effect for anything from one year to fourteen years. Sixty-nine of these ordinances have been issued again with the President’s blessing.
The assembly of the state of Bihar ceased to operate efficiently and effectively. The administration in Bihar has assumed the role of lawmaker, and the existing ordinances are being re-promulgated by established procedures so that they remain in force.
The Petitioner sought to limit the application of Article 213 of the Constitution via a writ petition filed under Article 32.

HELD:

The Supreme Court, in its judgment, invalidated the illogical use of the Ordinance-making authority in a “subversion of the democratic process” and “colourable use of power.”
To re-promulgate an ordinance is to subvert the democratic process using fraud and abuse of the Constitution. The Court has the authority to strike down an ordinance if it is enacted in a shady manner.
Ordinances should only be passed in cases of extreme exigency, and not to cater to the personal agendas of elected officials. The legislative branch is the only one authorized to make laws, while the executive branch is strictly forbidden from doing so.
When it comes to the President of India, it’s worth noting that although he has the same authority to issue an Ordinance under Article 123 of the Constitution of India as the Governor has under Article 213 of the Constitution of India, he has never re-promulgated an expired Ordinance in the whole-time span between 1950 and the present.
In Bihar, the Executive has effectively usurped the function of the Legislature in lawmaking, and not only for a short time; this has been going on for years, despite the restrictions placed on it by the Constitution. This is unconstitutional since it runs counter to the constitutional framework and this practice should be abandoned in the future, and that whenever an Ordinance is passed, a Bill will be brought before the Legislature for enacting those provisions into an Act. Along with this, Ordinance-Raj must be abolished from the nation.