PETITIONER:

DR. D.C. WADHWA & ORS.

Vs.

RESPONDENT:
STATE OF BIHAR & ORS.

Bench: BHAGWATI, P.N. (CJ) MISRA RANGNATH OZA, G.L. (J) DUTT, M.M. (J)
SINGH, K.N. (J)

INTRODUCTION

Articles 123 and 213 of the Indian Constitution deals with the ordinance making power of the
President and Governors. According to Article 123, the President can promulgate an
ordinance only when both the houses of parliament are not in session and when the situation
seems necessary to pass a law. An ordinance has the equivalent force and legal impact as that
of the enactment of the law of parliament. Article 213 deals with the power of the governor
with respect to the state assembly.

An ordinance is temporary in nature it became a permanent law after being passed by the
parliament. The ordinance has to be placed before the two houses of the legislature and it
discontinues to operate after the end of six weeks from the reassembly of both houses.

FACTS OF THE CASE

Dr. D.C. Wadhwa, the petitioner, was a professor who filed a Public Interest Litigation
challenging the authority of the Governor of Bihar to re-promulgate ordinances. The
petitioner brought to the notice of the court of law the misuse of Article 213, the ordinance
making power of the governor, in the state of Bihar as the government had proclaimed 256
ordinances between 1967 and 1981 which has been kept alive by automatically re-
promulgating the ordinances without altering any matter of the ordinance or acknowledging
to turn it into an Act for the time extending between one and fourteen years. Challenging the
scope of Article 213 a writ petition was filed before the Supreme Court under Article 32 of
the constitution.

The court examined the power of the governor to re-promulgate the ordinance as some of had
been re-promulgated over thirty times. The main question that was put forth before the bench
was does the governor has the power to re-promulgate the ordinance for an indefinite period
of time

ISSUE RAISED

Whether the re-promulgation of ordinances amounted to misuse of the power conferred by

Article 213 of the constitution of India?
JUDGEMENT OF THE COURT
After listening both the council supreme court held that mechanical re-promulgation of the
ordinances by the executive without directing it to the legislation is a colourable exert of
power. As per the doctrine of colourable legislation, a constitutional authority cannot do
indirectly what it is not permitted to do directly, it would amount to fraud as it is beyond the
power prescribed under the constitution. Thus, the executive cannot encroach upon the
constitutional prohibitions by retaining an indirect method. The legislative character of
ratifying of legislation cannot be changed for the indirect use of it to benefit and permit the
executive authority to surpass their constitutional powers. 

According to the court, there is no need to interpret a law that is clearly in violation of
constitutional principles, and anything that is in violation of constitutional norms should be
declared unconstitutional. In its judgement, the Supreme Court of India called the
unreasonable use of an ordinance to make power a "subversion of the democratic process"
and a "colorable exercise of authority." The court went on to say that re-promulgating an
ordinance is deception and abuse of the executive's constitutionally provided power, as well
as a violation of the democratic principle. The ordinance-making procedure is not exempt
from judicial review, and if an ordinance is promulgated in a colorable manner, the superior
court can nullify it. Thus, held that the re-promulgation of ordinances was unconstitutional. 

Some of the observations made by the Supreme Court are:

1) The governor's ability to promulgate an ordinance under Article 213 should be used
only when absolutely necessary and when both the house of the state is not in session.
2) Every governor-promulgated ordinance must be presented to the houses of parliament
within 6 weeks of their reassembly. An ordinance has a maximum life of seven and a
half months unless it is turned into an act or has been rejected by the legislature before
it expires.
3) The continuous promulgation of ordinances is not a good remedy, according to
principles of Indian constitutional, because the legislature can make the ordinance an
enactment at the same time. Without approaching the legislature, the ordinance cannot
be sustained indefinitely by re-promulgation.

The court made two exemptions to this rule: first, if the legislature is unable to take it up
owing to pending legislative activity, and second if the government believes an exceptional
circumstance has occurred and re-promulgation is required to deal with it.

Conclusion

The authority to promulgate an ordinance, as provided in the Indian constitution, should only
be utilized in exceptional emergency situations, not to fulfil the political demands and
ambitions of any individual. In addition, the legislative has the power to make laws, the
administration has the authority to put those laws into force, and the judiciary interprets those
laws. The executive branch shall not perform tasks of the law-making process which
is principally reserved for the legislature. If this is not addressed, the heart of the
constitutional mission would be undermined, since Indian citizens will be ruled by executive
rather than legislative rules.