D.C. WADHWA & Ors vs STATE OF BIHAR & Ors (1986)1987 AIR 579;

Author :Rimin Cherian Reji , Law student at New Law College, BVDU.

Edited by : Shruti Mayur , Law student at Amity University.

CONTENTS

CASE ANALYSIS ON.. 1

_________[D.C. Wadhwa & Ors vs State of Bihar & Ors (1986)]__________. 1

CONTENTS. 2

ABSTRACT. 3

CASE DETAILS: 4

INTRODUCTION AND BACKGROUND OF JUDGEMENT. 4

FACTS OF THE CASE. 5

LEGAL ISSUES RAISED.. 7

PETITIONERS’ ARGUMENTS. 8

RESPONDENT’S ARGUMENTS. 10

RELATED LEGAL PROVISIONS. 12

Article 32: 12

Article 123. 12

Article 213. 13

JUDGEMENT. 15

Ratio Decidendi 15

Obiter Dictum.. 15

REFERENCES. 17

ABSTRACT

It was common for the state of Bihar to routinely re-promulgate ordinances having similar clauses, without bothering to present them to the assembly. The Bihar Forest Produce (Regulation of Trade) Third Ordinance 1983, the Bihar Bricks Supply (Control) Third Ordinance 1983, and the Bihar Intermediate Education Council Third Ordinance 1983 were the three ordinances that the petitioners challenged being re-promulgated after years of the practice continuing. As a representative of the public worried about the practice’s infringement of constitutional norms, Petitioner No. 1, an Economics professor, investigated the practice of re-promulgation by the State of Bihar’s governor and challenged it. Article 213 of the Constitution states that the Governor has the power to promulgate an ordinance in emergencies when both the houses of State Legislature are not in session so that the recession of the Legislature would not affect the forerunning of the society but the Ordinance should be laid before the Legislature if the State Government wants to continue the ordinance. It will expire six weeks from the reassembly of the Legislature or if the Legislative Assembly passes and the Legislative Council agrees to a resolution disapproving it. The Court ruled that the Governor was not authorized to re-promulgate the ordinance without first consulting the Legislature and with the same conditions.

Keywords: emergency power, legislature, Article 213, re-promulgation of ordinances

CASE DETAILS:

      i)          Case Name  Dr. D.C. Wadhwa & Ors vs. State of Bihar & Ors (1987)
    ii)          Case Number 1987 AIR 579; 1987 SCR (1) 798; 1987 (1) SCC 378; (1987) IJR (SC); 1987 BBCJ 46; (1987) 1 JT 70 (SC); (1986) 4 SUPREME 465
   iii)          Judgement Date 20 December 1986
   iv)          Court Honourable Supreme Court of India
     v)          Constitution of Bench Honourable Justice P.N Bhagwati (then CJI), Honourable Justice Ranganath Misra, Honourable Justice G.L. Oza, Honourable Justice M.M. Dutt, Honourable Justice K.N. Singh
   vi)          Author Justice P.N. Bhagwati
 vii)          Equivalent Citation 1987 AIR 579; 1987 SCR (1) 798; 1987 (1) SCC 378; (1987) IJR (SC); 1987 BBCJ 46; (1987) 1 JT 70 (SC); (1986) 4 SUPREME 465
viii)          Legal Provisions Involved Article 32, Article 123, and Article 213

 INTRODUCTION

A government consists of three branches: legislative, executive, and judicial. Although a divide of powers exists between these departments to ensure the proper administration of the government, it is not absolute in India.[1]  The legislature is the primary body responsible for enacting laws, but under specific conditions, the other organs may also do so. When the legislature is not in session, the executive can adopt laws in the form of ordinances, utilizing the powers assigned to the President and Governor by Articles 123 and 213 of the Constitution.[2]  The Constitution’s definition of law, included in Article 13(3), also states that an ordinance is a law. According to Articles 123 and 213, an ordinance has the same legal effect as a legislative act.[3] An Ordinance is issued at the core to defend the public’s interests even when the legislature is not in session. In D.C. Wadhwa vs. the State of Bihar (1987), the Court examines the Governor’s authority and restrictions in promulgating ordinances. It also determines the constitutionality of re-promulgating ordinances.

FACTS OF THE CASE

The State of Bihar routinely issued new ordinances with identical provisions, and it never bothered to change the ordinances’ legal form into acts that the assembly could eventually adopt.[4]  The Governor issued new ordinances with the same provisions even though the legislature was not in session.[5] This continued until the petitioners contested three particular ordinances, after which the governor re-promulgated them. The three laws were the Bihar Intermediate Education Council Third Ordinance of 1983, the Bihar Forest Produce (Regulation of Trade) Third Ordinance of 1983, and the Bihar Bricks Supply (Control) Third Ordinance of 1983. These ordinances were re-promulgated by the Governor with the same wording, but they were not brought before the legislature for adoption.

The Governor of Bihar’s re-promulgation of ordinances was the subject of intense investigation by Economics Professor D.C. Wadhwa, who published his findings in a book titled “Repromulgation of Ordinances: Fraud on the Constitution of India.” His research indicates that the Governor of Bihar enacted 256 ordinances between 1967 and 1981, 69 of which were repeatedly promulgated and kept in force with the permission of the Indian President.[6]  The three challenged Ordinances likewise operated according to the same protocol. [7] First published in 1977, the Bihar Forest Produce (Regulation of Trade) Third Ordinance has since been republished numerous times. First published in 1979, the Bihar Bricks Supply (Control) Third Ordinance has since been repeated multiple times.[8] In a similar vein, the 1982 Bihar Intermediate Education Council Third Ordinance was re-promulgated prior to facing legal challenges. Until the petitioners objected to them through a writ petition filed under Article 32, these three ordinances were in force.  Petitioner No. 1 contested the ordinances as a responsible citizen because he was worried about maintaining the constitutional framework.[9]

To create rules governing the sale and commerce of forest products, the governor passed the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983.[10]  Clauses 5 and 7 of the ordinance violated Petitioner No. 2’s right to sell forest produce to the extent of his interest, causing harm to the petitioner.[11]  This led the petitioner to challenge the ordinance in a writ petition.

To regulate the course of study of Bihar students, the government established the Bihar Intermediate Education Council Third Ordinance, 1983. It interfered with petitioner No. 3, an intermediate student’s right to choose a course of his choosing, so the petitioner filed a writ petition contesting the ordinance.[12]

The Bihar Bricks Supply (Control) Third Ordinance, 1983 was issued by the state government, directing the governor to regulate and control brick trade and commerce, including pricing.[13]  Petitioner No. 4, who owns South Bihari Agency, a brick production company, was impacted by this and filed a writ case challenging the ordinance as a result.[14]

Two of the ordinances, the Bihar Forest Produce (Regulation of Trade) Third Ordinance and the Bihar Bricks Supply Third Ordinance, were passed by the State Legislature of Bihar while the petitioners’ writ petitions challenging the three ordinances were pending. The Third Ordinance of the Bihar Intermediate Education Council remained in force while it was undergoing enactment before the state assembly.[15]

LEGAL ISSUES RAISED

  • Whether the petitioners have locus standi to maintain writ petitions?
  • Whether the questions raised in the writ petitions merely academic in nature with no constitutional importance?
  • Whether the Governor could continue re-promulgating ordinances for an indefinite period, thereby bypassing the legislative process?
  1. Whether the scope and limitation of the Governor’s power to promulgate ordinances is defined under Article 213 of the Constitution?
  2. Whether the practice of the Bihar government of systematically re-promulgating ordinances without enacting them into law considered a colourable exercise of power and violated the constitutional scheme?

PETITIONER’S ARGUMENTS

It was submitted that the petitioners have the locus standi to file the writ petitions. Petitioner No. 2 was directly affected by clauses 5 and 7 of the Bihar Forest Produce (Regulation of deal) Third Ordinance, 1983, which banned the sale of specific products and required him to deal only with those allowed by the state government, against his own interests.[16]  The ordinance enhances the state monopoly[17] and it strengthens the “ordinance raj” of the executive by bypassing the Legislature as it was not enacted as an Act by the Legislature. Petitioner No. 3 was an intermediate student at A.N. College and the Bihar Intermediate Education Council Third Ordinance, 1983 which regulates the course of study in the state affected the interest of the petitioner as a student.[18] Petitioner No. 4, a proprietor of a brick manufacturing concern, was affected by the Bihar Bricks Supply (Control) Third Ordinance, 1983 which gives the Government of Bihar the sole authority to regulate and control every trade-related matter of bricks including the price.[19] Petitioner No. 1 was not directly affected by any of the challenged ordinances but got the right to question the executive, which bypassed the legislature by re-promulgating ordinances and functioned beyond its limitations, in the public interest.[20] Two of the three ordinances namely the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983, and the Bihar Bricks Supply (Control) Third Ordinance, 1983 were enacted into acts only during the pendency of the writ petition and the Bihar Intermediate Education Council was still in operation even though it was introduced before the legislature for the enactment purpose.[21] These reasons make the writ petition maintainable.

It was submitted that the practice of re-promulgating ordinances shows the colourable exercise of power by the executive over the legislature by functioning beyond the constitutional limitations.[22] The main and important feature of federalism is the separation of powers but a quasi-federal country like India follows some exceptions and one such exception is the ordinance issuing power given to the executive but it has limitations and the authorities are bound to behave accordingly. The practice of re-promulgating ordinances with the same provisions by the Governor without considering the legislature can be interpreted as an effort to bypass the legislature and thus pave the way for “ordinance raj”[23][24]

It was submitted that the petitions were in the interest of the constitution and not academic. Petitioner No.1 conducted research on the re-promulgation of ordinances by the Governor over a period of time and he published his findings which helped the public understand the misuse of power by the Governor of Bihar as well as the executive.[25] The public has the right to question the government’s unjust practices. The people elect members of the legislature to establish laws for the people, and the goal is the core line of the concept of democracy, which is “for the people, by the people, and for the people.” The Governor’s practice violates constitutional provisions and harms the public interest.[26] Petitioners Nos. 2, 3, and 4 were directly harmed by the ordinance provisions [27]and represent the people who were exploited by the executive’s non-democratic and unlawful conduct that bypassed the legislature.

It was submitted by the petitioners that the Governor of Bihar’s practice violated the constitutional system. The very purpose of the ordinance issuing power given to the President or Governor of each state is to protect the interest of the public in the recession of the legislative body. Articles 123 and 213 of the Constitution clearly state that the promulgating power of the President or the Governor is an emergency power and it should be used when the legislature is not in session. It also states that the issued ordinance will expire six weeks after the legislature’s reassembly or if the legislature passes an ordinance disapproving the ordinance,[28] but the Governor of Bihar repeatedly re-promulgates ordinances without changing their provisions or presenting them to the legislature for approval[29], which has primary law-making authority.

RESPONDENT’S ARGUMENTS

It was submitted that the petitioners lacked locus standi to maintain the writs. They maintained that the petitioners were outsiders with no legal stake in challenging the Governor’s promulgating power.[30] The ordinances were not challenged out of any legal interest like for the development of the law or protecting the established law. Two out of the three challenged ordinances namely the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983, and the Bihar Bricks Supply (Control) Third Ordinance, 1983 were enacted into Acts by the State Legislature of Bihar, and the third challenged Ordinance, the Bihar Intermediate Education Council was pending before the legislature for the enactment purpose. The main question raised by the petitioners was whether the executive bypassed the legislature by not considering it for enacting ordinances but the challenged ordinances were already enacted into Acts or pending before the legislature[31] and this makes the petition invalid.

It was submitted that the petitions were academic in nature and there were no constitutional interests. Petitioner No.1, a professor was conducting research and he challenged the ordinances for the research purpose and is merely academic in nature. The petitioner was a professor of economics and the remaining petitioners are from outside the legal field and thus have no legal interests.[32]

It was submitted that the Court lacks the authority to question the satisfaction of the criteria precedent for the exercise of power. The Governor has the authority to make ordinances under Article 213.[33] The Governor’s responsibility is to act in the interests of the ruling government. He was exercising his executive authority by issuing an ordinance protected by the Constitution. It is the Governor’s legal responsibility to promulgate an ordinance in an emergency when the House is not in session. To defend the public’s interests, the Governor must adopt ordinances when society demands them. The petition questions his executive power to issue an ordinance.

It was argued that the practice of re-promulgating ordinances is not a colorable exercise of power. Article 213 of the Constitution stipulates that the Governor has the authority to make ordinances during the legislative recess. The Governor has legislative support in issuing ordinances. His actions were based on the constitutional provisions.

RELATED LEGAL PROVISIONS

Article 32:

“Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

Article 123

“Power of President to promulgate Ordinances during recess of Parliament.—(1) If at any time, except when both Houses of Parliament are in session, the President 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 Parliament, but every such Ordinance—

(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and

(b) maybe withdrawn at any time by the President.

Explanation.- Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.”

Article 213

“Power of Governor to promulgate Ordinances during recess of Legislature.—(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:

Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if—

(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless having been reserved for the consideration of the President, it had received the assent of the President.

(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 reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:

Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.”

 JUDGEMENT

Ratio Decidendi

The Court ruled that the Governor cannot re-promulgate ordinances with the same provisions without first putting them before the legislature. Article 213 explicitly specifies that an ordinance has a six-week validity period and must be filed in the legislature so that it can determine whether to implement it as an Act or reject it by passing a resolution if the administration wishes to maintain the ordinance for future use.[34]  The legislative is the government’s principal lawmaking organ, and the executive’s role is to carry out approved laws. Article 174 of the constitution mentions the sessions held by a state legislature.[35] It cannot hold sessions throughout the year but at least twice a year.[36] There might be a situation in which the legislature is not in session and the requirement of enacting a law with immediate purpose. For this kind of emergency situation, the constitution-makers included Articles 123 & 213 in the Constitution which enable the President and Governor to issue ordinances in the absence of the primary lawmaking authority. The Governor of a state can utilize this scope of Article 213 and he also has the responsibility to act within the limitations of his power. By re-promulgating an ordinance with the same provisions and without considering the legislature the Governor is acting beyond his limitation and such an act is unconstitutional.

Obiter Dictum

The Court stated that the practice of re-promulgating ordinances without incorporating them into an Act on a regular basis is a colorable exercise of power and is unconstitutional. Separation of powers is a key component of a federal country. The fundamental concept of the rule of law is the separation of powers. Power is separated between different organs of the government so that they can function independently and it avoids the invasion of power by the other organs.[37] The practice of the Governor, who represents the executive, of re-promulgating ordinances with the same provisions and without considering the legislature on a repeat basis, can be seen as an invasion of the power of the Legislature. This may lead to the rise of an “ordinance raj” thus the executive government can make any law as per their choice and will no longer be responsible to the legislature as they took over the power of the legislature. The practice of re-promulgating ordinances can be seen as an effort to bypass the legislature and it is unconstitutional.

CONCLUSION

The Bihar government continued to re-promulgate ordinances with the same clauses without regard for the state legislature. The matter to consider is that the practice took place for almost 14 years and no one challenged it. It may be because of any lack of evidence against the government i.e. the executive but the issue was somewhat sorted out because of the research conducted by Petitioner No. 1, Dr. D.C. Wadhwa, and the publication of his findings as a book under the title “Repromulgation of Ordinances: Fraud on the Constitution of India”. The study claims that between 1967 and 1981, the governor of Bihar issued 256 ordinances, of which 69 were repeatedly issued and maintained in effect with the prior approval of the Indian president. A.K. Roy v. Union of India (1982), S.P. Gupta & Ors. vs. Union of India & Ors. (1982), and other cases addressed the goal of promulgating an ordinance, as well as its scope and limitations. However, the topic of re-promulgating ordinances has not received as much attention as it should have. Issuing an ordinance is an emergency power of the Governor and the validity of an ordinance is six weeks. When the Governor re-promulgated ordinances, as a common practice, he violated the constitutional scheme, and such an act can be seen as a measure to bypass the state legislature. The judgment clearly states that the Governor does not have the authority to re-promulgate ordinances with the same provisions without considering the legislature and it is a landmark judgment.

 REFERENCES

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