D.C. Wadhwa and Ors. vs. State of Bihar and Ors.

Judges: P.N. Bhagwati, C.J., K.N. Singh, M.M. Dutt, G.L. Oza and Ranganath Misra, JJ.

Facts:

The writ petitions have been filed for challenging the validity of the practice of the State of Bihar in promulgating and repromulgating ordinances on a massive scale and in particular 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 was a professor of economics and made a deep and profound study of the practice which is being followed in the State of Bihar of promulgating and repromulgating ordinances from time to time without enacting them into Acts of the Legislature.

Petitioner No. 2 is occupancy Raiyat of village Anigara in the district of Ranchi and grows forest produce in his Raiyat land. He challenged validity of Ordinance, 1983 on the grounds that due to the provisions of the Ordinance, 1983, the 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. He has mainly challenged the Caluse 5 and 7 of the Ordinance, 1983

Petitioner No. 3 was a student studying in Intermediate (Science) Class and affected by the Bihar Intermediate Education Council Third Ordinance. Similarly, petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he is the proprietor of 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 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.

Issues:

(i) Whether the Petitioners have a locus standi to maintain the petitions?

(ii) Can the Governor go on repromulgating ordinances for an indefinite period of time and thus take over the power of the Legislature to legislate despite the fact that the power is conferred on him under Article 213 of Constitution 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 Legislature are not in session?

Law:

Constitution of India - Article - 213 - (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative 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 Ordinance- (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 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 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 re assemble on different dates, the period of six weeks shall be reckoned from the later of these dates for the purposes of this clause......

Contentions

Respondent

Maintainability of Petitions: Petitioners had no locus standi to maintain this writ petition since out of the three ordinances challenged on behalf of the petitioners, 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 were enacted in Acts of the Legislature. So far as The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act.

Further, petitioners are not entitled to challenge the practice prevalent in the State of Bihar of repromulgating ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validity of this practice.

Writ petitions was academic in nature and should not be adjudicated upon by the Court.

Merits: Court is not entitled to examine whether the conditions precedent for the exercise of the power of the Governor under Article 213 of the Constitution existed or not, for the purpose of determining the validity of an Ordinance.

Analysis

Maintainability of Petitions

(i) Preliminary objection raised on behalf of the respondents is not 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. However, 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.

(ii) The third ordinance, Bihar Intermediate Education Council Third Ordinance is still in operation though a bill incorporating the provisions of this ordinance is pending consideration 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.

(iii) Further, petitioner No. 1 has sufficient interest to maintain a petition under Article 32 of the Constitution 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. The practice followed by the State of Bihar of repromulgating the ordinances from time to time without their provisions being enacted into Acts of the Legislature 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.

(iv) Bihar Intermediate Education Council Third Ordinance is 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 constitutional importance as it decides about the power of the Governor to repromulgate ordinances and it is in public interest that the Executive should know the limitations on the power of the Governor in the matter of repromulgation 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 repromulgate ordinances will remain undetermined.

Power of Governor to Issue Ordinance

(i) 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.

(ii) The primary law making authority under the Constitution is the Legislature and not the Executive. Thus, 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 Legislative Assembly and agreed to by the Legislative Council, if any.

(iii) 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 resolution of the Legislature before the expiry of that period.

(iv) 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."

(v) 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.

(vi) The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued.

(vii) 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 repromulgation.

(viii) Governor 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.

(ix)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.

Conclusion:

Bihar Intermediate Education Council Ordinance, 1983 strike down as unconstitutional and void.

Important Precedents:

(i) S.P. Gupta and Ors. v. Union of India and Ors., MANU/SC/0080/1981 - 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 enforcement of such public duty and observance of such constitutional or legal provision.

(ii) P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Anr., MANU/SC/0049/1964 - 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.