|Citation||1987 AIR 579, 1987 SCR(1) 798|
|Year||20th December 1986|
|Appellant||D.C Wadhwa & Others|
|Respondent||State of Bihar|
|Judges||Chief Justice P.N Bhagwati, Justice Ranganath Mishra, Justice G.L Orza, Justice M.M Dutta & Justice K.N Singh|
|Acts involved||Constitution of India, Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983; Bihar Intermediate Education Council; The Bihar Bricks Supply (Control) Third Ordinance, 1983|
|Sections||1. Article 213 of the Constitution of India|
2. Clause 5 & 7 of the Third Ordinance, Bihar Forest Produce (Regulation of Trade) 1983
The Constitution of India is the foundation of rule of law in India and the identity of its citizen including the government is by its nation. The rule of law constitutes the core of our Constitution and the essence of the rule of law provides that the exercise of power either Legislative or Executive or any other authority of the State, shall be within the “Constitutional limits” and no one is empowered to make the rules or laws violating the constitutional provisions. If any of the body of the State violates and surpasses the constitutional limitations, then the citizens are entrusted with the right and power to challenge such practice by filing the Writ Petition under Art. 226 and Art. 32 of the Constitution; and it would be the constitutional duty of the Court to entertain the writ petition and adjudicated upon the validity of such practice.
In the particular case, The writ petition is filed under Article 32 of the Constitution enumerating the question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution. The questions raised in the case hold great constitutional importance because it in the public interest and the Executive shall know the limitations on the power of the Governor in the matter of re-promulgation of ordinances. It has either to be decided on merits or constitutional limitations. The power of the Governor to promulgate the Ordinance under Article 213 is of emergency character, exercisable when the Parliament is not in the Session and it is vested on Governor to deal with a situation that requires immediate actions and cannot wait until the legislature reassembles. It expires when the Legislature reassembles after 6 weeks or the period of expiry as prescribed by the Legislative Council.
Art. 213 is contrary to all the democratic norms by empowering the Executive to make a law and shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature. The framers of the Indian Constitution expected an Ordinance to become necessary Act in the given time if it is necessary and if within this time the Legislature does not pass such an Act, the Ordinance must come to an end.
In the given case, Petitioner 1 is a professor of economics in the Gokhale Institute of Politics and Economics, Pune. He had spent numerous years of his life in studying the constitutional functioning of the Indian politics and deeply interested in the preservation and promotion of constitutional functioning of the administration in the country. A deep and profound study is done by him concerning the practice of promulgating and re-promulgating ordinances from time to time by the State of Bihar without enacting them into the Acts of the Legislature
Petitioner 2 is occupant Raiyat of village Anigara, Ranchi, and grows forest produce in his Raiyat land. By the effect of clause (5) and clause (7) of the third Ordinance of this Act, he was prevented from selling his forest produce to any purchaser other than those mentioned in the ordinance; thus, adversely affecting his right to dispose of hi forest produce that made him challenge the constitutional validity of this act. Petitioner 3 is a student studying in Intermediate Class, A.N College, Patna and he filed the petition because he was adversely affected by the Third Ordinance of Bihar Intermediate Education Council and thus challenged the constitutional validity of the same.
Petitioner 4 was aggrieved by the Bihar Bricks Supply (Control) Third Ordinance because he was the proprietor of South Bihar Agency, Patna which is a brick manufacturing department under a license issued by the Mining and the Industry Department of the Bihar Government, and the ordinance of this act was adversely affecting the rights and interest of the petitioner; thus he too challenged the constitutional validity of the ordinance. The Bihar Forest Produce (Regulation of Trade) Third Ordinance was first promulgated in 1977 and after its expiry, it was promulgated several times without it being converted into an Act of the State Legislature and it continued to be in force until it was placed by Bihar Act No. 12 of 1984 on 17th May 1984.
The Bihar Intermediate Education Council Third Ordinance was initially promulgated in 1982 and after its expiry, it was again promulgated by the Governor of Bihar four times with the same provisions and it was ultimately 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 promulgated 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.
A writ petition was filed by four petitioners challenging the validity of the practice of promulgating and re-promulgating the same ordinance on a massive scale by the State of Bihar. The constitutional validity of three different ordinances issued by the Governor of Bihar was particularly challenged.
These ordinances were:
- Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983;
- The Bihar Intermediate Education Council Third Ordinance, 1983; and
- The Bihar Bricks Supply (Control) Third Ordinance, 1983.
Petitioner 1 carried the detailed research on re-promulgation of the ordinances by the Governor of Bihar from time to time and as a result of it published a book entitled “ Repromulgation of Ordinance: Fraud on the Constitution of India” and some of the relevant extracts of the book have been annexed with the writ petition.
The research showed that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all these ordinances were kept alive for period 1 to 14 yrs by the repetitive re-promulgation by the Governor. Out of 256 ordinances, 69 were promulgated several times and kept alive with the prior permission of the President of India.
The respondents contended that petitioners had no “locus-standi” to maintain this writ petition because out of the three ordinances challenged by them, two of them namely Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983; and The Bihar Bricks Supply (Control) Third Ordinance, 1983 had already lapsed and their provisions are enacted in Acts of the Legislature.
- Whether the Governor can re-promulgate the same ordinances for time to time without getting them replaced by the Acts of the Legislature; and what is the scope of the power of the Governor conferred on him through Article 213 of the Constitution?
The question addressed in the case is that can the Governor can go on re-promulgating ordinances for an indefinite period and use the power conferred on him by the virtue of Art. 213 of the Constitution to take immediate actions when the State legislative assembly is not in session or when both Houses of the Legislature is not in session.
1. Bihar Forest Produce (Regulation of Trade) Third, 1983
- Clause (5), Ordinance 3 – restricts the sale of specified forest produce which later created State monopoly for the sale and purchase of those forest produce.
- Clause (7), Ordinance 3- conferred power on the State Government regarding fixing the price at which the specifies forest produce may be purchased either by the State or any authorized agent or officer of the forest from the growers of that forest produce.
2. Bihar Intermediate Education Council.
- Ordinance 3 (the provisions are not discussed in the case.
- The Bihar Bricks Supply (Control) Third Ordinance, 1983.
- The provisions of this ordinance empowered the State Government to control and regulate the manufacture, distribution, transport, disposal, and consumption of bricks and also the price at which the bricks can be bought or sold.
4. Article 213 of the Constitution
- Power of the Governor to promulgate Ordinances during the recess of Legislature.
In the case of S.P. Gupta & Ors. v. Union of India & Ors, the court observed that “ any member of the public having sufficient interest is entitled to maintain an action for judicial redress for public injury arising from the breach of a public duty or by violating the provisions of the Constitution or law and have right to seek enforcement of such public duty”.
In the case K.C Gajapati Narayan Deo &Ors v. the State of Orissa, the court held that “It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly and if there is a constitutional provision inhibiting the constitutional authority from doing an Act, such provision cannot be allowed to be defeated by the adoption of any subterfuge. That would be a fraud on the constitutional provision”.
In the case of P. Vajravelu Mudaliar v. Special Deputy Collector, Madras &Anr, the 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 covertly or indirectly if it adopts a device to outstep the limits of its power.” If the Executive goes beyond the Legislature while making the Ordinance then it is abusing its power.
The court rejected the contentions raised by the respondents on the ground that they were not well-founded because it is true that provisions of two out of three ordinances challenged in the writ petitions were enacted into Acts of the Legislature but it is pertinent to note that such enactment happened during the pendency of the writ petitions; the date on which these writ petitions have filed these ordinances were operational, thus affecting the interests of the petitioners.Moreover, the third ordinance is still operational as the bill regarding it fending before the State Legislature entitling the Petitioner 3 to challenge it.
Looking into the Petitioner 1, then he is a Professor of Political Science and deeply interested in ensuring proper implementation of the constitutional provisions. He is empowered to challenge them under Article 32 of the Constitution because “ It is a right of every citizen to be governed by the laws made following the Constitution of India rather than made by the executive, in violation of the constitutional provisions.”
Based on the research by Petitioner 1, the court observed that the Governor of Bihar used his power to promulgate the ordinance on a large scale and the same ordinances were re-promulgated after they ceased to operate. The court pointed out that the three ordinances challenged in these writ petitions also suffered the same process of re-promulgation from time to time. Now to answer the question; whether this practice of promulgation by the Governor of the Bihar could be justified with the legitimate exercise of the power of promulgating ordinances conferred on the Governor under Article 213 of the Constitution.
To this, the court observed that the determination of this question depends on the true interpretation of Art. 213 of the Constitution. By interpreting the Art. 213, the court held that the power conferred on the Governor to issue Ordinances is vested as an “emergency power”; for taking immediate action at the time when it becomes necessary to take such action at the time when the Legislature is not in the session. The primary lawmaking authority under the Indian Constitution is the Legislature and not the Executive but when the former is not in session and it becomes of utmost important to take some actions or make any law for the public interest, then under such circumstances the Governor is vested with the power to promulgate the ordinance. But every such Ordinance promulgated by the Governor shall be placed before the Legislature and it would cease to operate after the expiry of 6 weeks til the Legislature reassembles again; or before the expiry of the period as agreed by the Legislative Council.
The court held that, the power under Art. 213 of the Constitution is used to meet “extra-ordinary” situations and it cannot be allowed to be “perverted to serve political ends”. The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, re-promulgate the Ordinance as soon as the Legislature is prorogued else it would be “Colourable exercise of power on the part of the Executive”.
Thus, the petition was allowed.
The whole case revolves around the scope of the power of the Government to re-promulgate the ordinances again and again before the expiry of its terms and without enacting it into the Acts of the Legislature. The whole analysis clearly shows the Government of Bihar made it settled practice of re-promulgating the ordinances again and again and it was done methodologically and with the sense of deliberateness.
 2 SCR 365
 1 SCR 1
 1 SCR 614