The case of ‘D.C. Wadhwa v. Union of India, (1986)’ is a landmark case on the powers of Governor, especially his power of Ordinance, in other words, the prerogative of State government to issue ordinance.
The case arose, when four writ petition were filed under Article 32 of Indian Constitution, before the supreme court to consider a question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re-promulgate ordinances from time to time without getting them replaced by Acts of the Legislature.
The Main Question
The petition raised the question,
“Can the Governor go on re-promulgating ordinances for an indefinite period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 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?”
The facts of the Case
These writ petitions were filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating and re-promulgating ordinances on a massive scale and in particular they have challenged 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.
The Supreme court considered many issues, in this case. We will analyse through headings.
The issue of locus Standi
The court made important remarks on the issue of locus standi in this case, when state objected the locus standi of the petitioners.
There were four petitioners in this case-
Petitioner No. 1 was the professor of political science who had spent a number of years in studying the constitutional functioning of Indian Politics.
He had also made a deep and profound study of the practice which was being followed in the State of Bihar of promulgating and re-promulgating ordinances from time to time without enacting them into Acts of the Legislature.
Petitioner No. 2 was an occupancy Raiyat, who was affected by the provisions of Bihar Forest Produce (Regulations of Trade) Third Ordinance, his concern was that he 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 by these provisions and he was therefore interested in challenging the constitutional validity of this ordinance.
Petitioner No. 3 was a student studying in Intermediate (Science) Class, and was affected by the Bihar Intermediate Education Council Third Ordinance.
Petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he was the proprietor of South Bihar Agency, Patna, 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.
State’s Objection on Locus Standi
The respondent’s contention was that, petitioners had no locus standi to maintain 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 and so far as the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act.
The respondents also contended that the 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.
The court’s answer
The court refused to accept the contention of state on locus standi and said that 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 and 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. Moreover, the third ordinance, namely.
The 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.
The court made important observation talking about petitioner no. 1 position. The court said,
“Petitioner No. 1 is a Professor of Political Science and is deeply interested in ensuring proper implementation of the constitutional provisions. He has sufficient interest to maintain a petition under Article 32 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.
Of course, if any particular ordinance was being challenged by petitioner No. 1 he may not have the locus standi to challenge it simply as a member of the public unless some legal right or interest of his is violated or threatened by such ordinance, but here what petitioner No. 1 has a member of the public is complaining of is a practice which is being followed by the State of Bihar of re-promulgating the ordinances from time to time without their provisions being enacted into Acts of the Legislature.
It 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.”
The court further referred the case of ‘S.P. Gupta & Ors. v. Union of India & Ors.,  2 SCR 365, where Justice Bhagwati, observed: —
“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.”
Continuing its observation, the court said in the present case, “The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is inflagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.”
Therefore, the court rejected the contention of state.
The question on ‘Academic Nature’
The state further contended that it is the question of just Academic Nature, as ordinances already has elapsed and remaining is in process of becoming an Act.
But, the court rejected this contention too. And said,
“Third Ordinance is still 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 does the power of the Governor to re-promulgate ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of re-promulgation 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 re-promulgate ordinances will remain undetermined.”
The question of Ordinance
After settled above question, the court further moved to the issue of ‘Ordinance’. Petitioner No. 1 carried out thorough and detailed research in the matter of repromulgation of ordinances by the Governor of Bihar from time to time and the result of this research was compiled by him and published in a book entitled “Repromulgation of Ordinances: Fraud on the Constitution of India“. He annexed some relevant extracts of the book to the writ petition indicating the number of ordinances repromulgated repeatedly by the Governor of Bihar.
According to that book, the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all these ordinances were kept alive for periods ranging between one to 14 years by repromulgation from time to time. Out of these 256 ordinances 69 were repromulgated several times and kept alive with the prior permission of the President of India.
The following table would indicate the categorisation of these 256 ordinances by reference to their life groups: —
Thus, the power to promulgate ordinances was used by the Government of Bihar on a large scale and after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were repromulgated containing substantially the same provisions almost in a routine manner.
The question was whether this practice followed by the Government of Bihar could be justified as representing legitimate exercise of power of promulgating ordinances conferred on the Governor under Article. 213 of the Constitution.
Article 213 confers power on the Governor of a State to promulgate ordinances. 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.
The primary law making authority under the Constitution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circumstances may arise which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate Ordinances.
But 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.
Object of the provision
The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life.
Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that 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.
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.’
Executive cannot usurp the Legislature
Continuing further on ordinance, the court said,
“The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law- making function of the Legislature.
Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack.
But otherwise, 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. It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly.”
The court finally concluded that,
“We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legislature, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance–Raj in the country.
We must accordingly strike down the Bihar Intermediate Education Council Ordinance, 1983 which is still in operation as unconstitutional and void.”
The court also directed the state government to pay the petitioner no.1 a sum of 10,000, by way of cost of the writ petition because he had done enormous research and brought this reprehensible practice of the Government of Bihar to the notice of the Court.
D.C.Wadhwa v. Union of India, (1986)