Yogesh S. Limaye
Apex Judiciary has given a new year gift by pronouncing 2 important judgments, both by constitution bench of 7 members dated January 2, 2017.
1. Re-promulgation of ordinances is invalid and is fraud on constitution
2. A candidate can-not ask for votes in the name of religion, language, caste etc.
In this article, we will concentrate the first one, i.e. regarding “Re-promulgation of ordinances”.
Ordinances were promulgated and re-promulgated by the Governor of Bihar – two hundred fifty six of them between 1967 and 1981. These Ordinances were kept alive for long periods, going upto fourteen years.
Mr. D C Wadhwa conducted an academic research into the re-promulgation of Ordinances which became the subject of a bookand a petition under Article 32 of the Constitution. He has authored a book namely “Re-promulgation of Ordinance: A fraud on the Constitution of India”
Objective of this article-:
This case has brought to limelight another case of SC DR. D.C. WADHWA & ORS. Vs. STATE OF BIHAR & ORS. Dt 20/Dec/1986 with ref no 1987 AIR 579, 1987 SCR (1) 798, 1987 SCC (1) 378 JT 1987 (1) 70, 1986 SCALE (2)1174.
Government at that time [ and upto some extent this practice is still prevalent.] it seems, made it a settled practice to go on re-promulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness.
Immediately at the conclusion of each session of the State Legislature a circular letter used to be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Commissioners Secretaries, Special Secretaries, Additional Secretaries and all heads of departments intimating to them that the session of the Legislature had been got prorogued [discontinue a legislature without dissolving it] and that under Article”
Take away points-:
What is ordinance and why we need it
The legislature is not always in session. Convening it requires time. In the meantime, unforeseen events may arise which need legislative redressal. An ordinance can be promulgated only when the legislature is not in session. But the legislature has to be convened at an interval of no later than six months. The constitutional conferment of a power to frame ordinances is in deviation of the normal mode of legislation which takes place through the elected bodies comprising of Parliament and the state legislatures. Such a deviation is permitted by the Constitution to enable the President and Governors to enact ordinances which have the force and effect of law simply because of the existence of circumstances which can brook no delay in the formulation of legislation. In a parliamentary democracy, the government is responsible collectively to the elected legislature. The subsistence of a government depends on the continued confidence of the legislature. The ordinance making power is subject to the control of the legislature over the executive. The accountability of the executive to the legislature is symbolized by the manner in which the Constitution has subjected the ordinance making power to legislative authority.-
What cannot be done
State / Central Government cannot exercise their legislative power by sidestepping the normal practice of enactment of laws of legislative assembly / parliament by passing of ordinances.
The majority Judgment authored by Justice DY Chandrachud held that:
The requirement of placing the ordinance before the Legislature is mandatory,
But Justice Madan B Lokur observed that it is directory.
In this context, the Chief Justice of India, in his separate concurring opinion, observed: “I would, in that view, leave the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open.”
The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles. The test is whether the satisfaction is based on some relevant material. The court in the exercise of its power of judicial review will not determine the sufficiency or adequacy of the material. The court will scrutinize whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review in other words would enquire into whether there was no satisfaction at all.
Details of judgement
Krishna Kumar Singh and Others v State of Bihar and others Civil appeal 5875 OF 1994, 5876-5890 OF 1994, 3533-3595 OF 1995 Writ petition – 80 OF 1995
The article is structured in following manner whereby a reader can form his own opinion on correctness or otherwise of the judgment.
- Relevant paragraphs from Dr. D C Wadhwa case
- For download and further reading.
The first Ordinance, called The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 – was promulgated by the Governor of Bihar on 18 December 1989 The Ordinance contains a recital of the satisfaction of the Governor that :
“44….circumstances exist which render it necessary for him to take immediate action for the taking over of non-government Sanskrit schools for management and control by the State Government for improvement, better organization and development of Sanskrit education in the State of Bihar.”
Schedule of events
|Date and succession of ordinance promulgated||Parliament session ending at that time|
|Ordinance 32 of 1989 was promulgated on 16 December 1989 and was published in the Bihar Gazette Extra ordinary on 18 December 1989.||The session of the Vidhan Sabha concluded on 25 January 1990.|
|Second succession of ordinances on 28 January 1990||16 March 1990 and 30 March 1990.|
|Third succession of Ordinances2 May 1990||Vidhan Sabha took place between 22 June 1990 and 9 August 1990|
|fourthsuccession of Ordinances13 August 1990||Vidhan Sabha commenced on 22 November 1990|
|fifthsuccession of Ordinances 8 march 1991||Vidhan Sabha took place between 21 June 1991 and 2 August 1991|
|Sixthsuccession of Ordinances 8 August 1991||Vidhan Sabha took place from 1 December 1991 to 18 December 1991.|
|Seventhsuccession of Ordinances 21 January 1992||between 20 March 1992 and 27 March 1992.|
The above table indicates that, the Government intentionally did not make an attempt to table a bill in above matter before house of legislative assembly.
The Ordinances promulgated by the Governor followed a consistent pattern. None of the Ordinances was laid before the legislature. Each one of the Ordinances lapsed by efflux of time, six weeks after the convening of the session of the legislative assembly. When the previous Ordinance ceased to operate, a fresh Ordinance was issued when the legislative assembly was not in session. The legislative assembly had no occasion to consider whether any of the Ordinances should be approved or disapproved. No legislation to enact a law along the lines of the Ordinances was moved by the government in the legislative assembly.
Relevant paragraphs from Dr. D C Wadhwa case
To highlight the gravity of the matter, please refer
DR. D.C. WADHWA & ORS. Vs. STATE OF BIHAR & ORS. Dt 20/Dec/1986 with ref no 1987 AIR 579, 1987 SCR (1) 798, 1987 SCC (1) 378 JT 1987 (1) 70, 1986 SCALE (2)1174
“ We shall now proceed to state how the Governor in the State of Bihar has been indulging in the practice of re-promulgating the ordinances from time to time so as to keep them alive for an indefinite period of time. Petitioner No.1 carried out thorough and detailed research in the matter of re-promulgation 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 “Re-promulgation of Ordinances: Fraud on the Constitution of India”. Some of the relevant extracts from this book have been annexed to the writ petition indicating the number of ordinances re-promulgated repeatedly by the Governor of Bihar. It is clear on a perusal of these extracts that 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 re-promulgation from time to time. Out of these 256 ordinances 69 were re-promulgated several times and kept alive with the prior permission of the President of India. The following table would indicate the categorization of these 256 ordinances by reference to their life groups:–
|Life-Groups (Years)||Number of Ordinances|
The enormity of the situation would appear to be startling if we have a look at some of the ordinances which were allowed to continue in force by the methodology of re-promulgation. The following table indicates in the case of each ordinance, the title of the ordinance, the date of first promulgation and the total period for which the ordinance was continued in force by adopting the stratagem of re-promulgation:
Here the original table give following details.
Name of the Ordinance
Date on which first Promulgated
Life of the Ordinance in years, months and days.
|The Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance 1968 (Ordinance No. 3 of 1968)||13|
|ii. The Bihar Panchayati Raj (Amending and Validating) Ordinance 1970 (Ordinance No. 3 of 1970)||11|
|iii. The Bihar Hindu Religious Trusts (Amendment) Ordinance, 1970 (Ordi- nance No. 5 of 1970)||11|
|iv. The State Aid to 10.9.1 Industries (Amendment) Ordinance, 1970 (Ordi- nance No. 8 of 1970)||11|
|v. The Bihar Bihar Khadi a Village Industries (Amendment) Ordinance, 1970 (Ordinance No. 9 of 1970)||11|
|vi. The Bihar Soil and Water Conservation and Land Development Ordinance, 1971 (Ordinance No. 16 of 1971)||10|
|vii. The Bihar Panchayati 1 Raj (Amendment) Ordi- nance, 1971 (Ordinance No. 54 of 1971) 808||10|
|viii. The Bihar Municipal (Third Amendment) Ordinance, 1971 (Ordi- nance No. 57 of 1971)||10|
|ix. The Patna Municipal Corporation (Amendment) Ordinance, 1971 (Ordinance No. 58 of 1971)||10|
|x. The Bihar State Housing Board Ordinance, 1971 (Ordinance No. 101 of 1971)||10|
|xi. The Bihar Co-operative Societies (Second Amend-ment) Ordinance, 1971 (Ordinance No. 103 of 1971)||10|
|xii. The Bihar Agricultural Produce Markets (Amend-ment) Ordinance, 1972 (Ordinance No. 6 of 1972)||9|
|xiii. The Bihar Medical Educa tional Institutions (Regulation and Control) Ordinance, 1972 (Ordinance No. 69 of 1972)||9|
|xiv. The Rajendra Agricultura University (Amendment) Ordinance, 1973 (Ordinance No. 2 of 1973)||8|
|xv. The Bihar Panchayati 22 Raj (Validating) Ordinance 1973 (Ordinance No. 5 of 1973)||8|
|xvi. The Bihar Panchayat 22 Samitis and Zilla Parishads (Amending and Validating Ordinance, 1973 (Ordinance No. 6 of 1973)||8|
|xvii. The Bihar Khadi and Village Industries (Amendment) Ordinance, 1973 (Ordinance No. 122 of 1973)||8|
|xviii. The Motor Vehicles (Bihar Amendment) Ordi-nance, 1971 (Ordinance No. 56 of 1971)||7|
|xix. The Bihar State Aid to Industries (Second Amend-ment) Ordinance, 1974 (Ordinance No. 56 of 1974)||7|
|xx. The Bihar Irrigation Laws (Amendment) Ordinance, 1974 (Ordinance No. 169 of 1974)||7|
|xxi. The Bihar Irrigation Fie Channel (Amendment) Ordi-nance 1974, (Ordinance No. 170 of 1974)||7|
|xxii. The Bihar Soil and Wate Conservation and Land Development (Amendment) Ordinance, 1974 (Ordi-nance No. 174 of 1974-)||7|
|xxiii. The Bihar Gramdan (Amendment) Ordinance1972 (Ordinance No. 12 of 1972)||6|
|xxiv. The Bihar Primary Edu-cation (Amendment) Ordi-nance, 1970 (Ordinance No. 6 of 1970)||6|
|xxv. The Bihar Regional Deve-lopment Authority Ordi-nance, 1974 (Ordinance No. 175 of 1974)||6|
|xxvi. The Chota Nagpur and 2 Santhal Parganas Autono- mous Development Autho- rity (Fifth Amendment) Ordinance, 1975 (Ordi-nance No. 197 of 1975)||6|
|xxvii. The Bihar Motor Vehicle Taxation (Fifth Amendment) Ordinance, 1975 (Ordi- nance No. 207 of 1975)||6|
|xxxviii. The Bihar Case (Amendment) Ordinance, 1975 (Ordinance No. 209 of 1975)||6|
|xxix. The Bihar Public Land Encroachment (Amendment) Ordinance, 1975 (Ordi-nance No. 210 of 1975)||6|
|xxx. The Bihar Motor Vehicles Taxation (Sixth Amend- ment) Ordinance; 1975 (Ordinance No. 212 of 1975)||6|
|xxxi. The Bihar Motor Vehicle Taxation (Seventh Amend-ment) Ordinance, 1975(Ordinance No. 214 of 1975)||6|
It will thus be seen that 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 re-promulgated containing substantially the same provisions almost in a routine manner. This would be clear from the fact that on 26th August, 1973 the Governor of Bihar re-promulgated 54 ordinances with the same provisions and on 17th January, 1973, 49 ordinances were re-promulgated by the Governor of Bihar containing substantially the same provisions and again on 27th April, 1974, 7 ordinances were re-promulgated and on 29th April, 1974, 9 ordinances were re-promulgated with substantially the same provisions. Then again on 23rd July, 1974, 51 ordinances were re-promulgated which included the self-same ordinances which had been re-promulgated on27th and 29th April, 1974. On 18th March, 1979, 52 ordinances were re-promulgated while on 18th August, 1979, 51 ordinances were re-promulgated containing substantially the same provisions. 49 ordinances were re-promulgated on 28th April, 1979 and on 18th August, 1979, 51 ordinances were re-promulgated. This exercise of making mass repromulgation of ordinances on the prorogation of the session of the State Legislature continued unabated and on 11th August, 1980, 49 ordinances were re-promulgated while on 19th January 1981, the number of ordinances re-promulgated was as high as 53. The following table shows how many times the same Ordinance was re-promulgated in order to keep its provisions in force:
the original order contains the data as follows
Name of ordinances
Date of first promulgation
Last date of re-promulgation
How many times re-promulgated
total period of life of ordinances
I am re-producing the following data
|Name of ordinances||How many times re-promulgated||total period of life of ordinances|
|1. The Bihar Sugarcane (Regulation of supply and Purchase) Ordinance, 1968||39||14|
|2. The Bihar Panchayat Raj (Amending and Validating) 1970||35||12|
|3. The Bihar Hindu Religious Trusts (Amendment) Ordinance, 1970||37||12|
|4. The Bihar State Aid to Industries (Amendment) 1970||34||12|
|5. The Bihar Khadi and Village Industries (Amendment) 1970||35||12|
It may be pointed out that the three ordinances challenged in these writ petitions also suffered the same process of repromulgation from time to time. The Bihar Forest Produce (Regulation of Trade) Third Ordinance was first promulgated in 1977 and after its expiry, it was repromulgated 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. So far as the Bihar Intermediate Education Council Third Ordinance is concerned it was initially promulgated in 1982 and after its expiry, it was again repromulgated 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 re-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. Thus the Bihar Forest Produce (Regulations of Trade) Third Ordinance continued to be in force for a period of more than six years, the Bihar Intermediate Education Council Third Ordinance remained in force for a period of more than one year, while the Bihar Bricks Supply (Control)Third Ordinance was continued in force for a period of more than five years.
The Government of Bihar, it seems, made it a settled practice to go on re-promulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness.
Immediately at the conclusion of each session of the State Legislature a circular letter used to be sent by the Special Secretary in the Department of Parlia- mentary Affairs to all the Commissioners Secretaries, Spe- cial Secretaries, Additional Secretaries and all heads of departments intimating to them that the session of the Legislature had been got prorogued’ and that under Article 213 Clause (2)(a) of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the Legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get “all the concerned ordinances re-promulgated”, so that all those ordinances are positively re-promulgated before the date of their expiry. This circular letter also used to advise the officers that if the old ordinances were re-promulgated in their original form without any amendment, the approval of the Council of Ministers would not be necessary. The petitioners placed before the Court a copy of one such circular letter dated 29th July, 1981 and it described the subject of the communication as “regarding re-promulgation of ordinances”. It would be profitable to reproduce this circular letter dated 29th July. 1981 as it indicates the routine manner in which the ordinances were re-promulgated by the Governor of Bihar:
Letter No. P.A./Misc. 1040/80-872
GOVERNMENT OF BIHAR
DEPARTMENT OF PARLIAMENTARY AFFAIRS
Basant Kumar Dubey
Special Secretary to the Govt.
To: All Commissioners and Secretaries, All Special Secretaries, All Additional Secretaries, All Heads of Departments
Patna 15–dated 29th July, 1981
Subject: Regarding re-promulgation of Ordinances.
I am directed to say that the budget Session of the Legislature (June-July 1981) has been got prorogued after the completion of the business of both the houses on July 28, 1981.
Under the provisions of Art . 213(2)(a) of the Constitution all the Ordinances cease to be in force after six weeks of he date of the reassembly of the Legislature. This time the session of the Legislative Assembly has begun on June 29, 1981 and that of the Legislative Council on July 1, 1981. Therefore from 1.7. 1981, six weeks, that is, 42 days would be completed on 1 1.8.1981 and if they are not repromulgated before the aforesaid date, then all the Ordinances will cease to be in force after 11.8.1981.
It is, therefore, requested that the Law Department may be contacted and immediate action be initiated to get all the concerned Ordinances re-promulgated so that they are definitely re-promulgated before 11.8.1981.
If the old ordinances are re-promulgated in their original form without any amendment, then the approval of the Council of Ministers is not necessary.
This should be given the top-most priority and necessary action should be taken immediately.
Sd/- Basant Kumar Dubey
Special Secretary to Bihar Government.”
This circular letter clearly shows beyond doubt that the re-promulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it necessary for the Governor to take immediate action by way of re-promulgation of the ordinances. The Government seemed to proceed on the basis that it was not necessary to introduce any legislation in the Legislature but that the law could be continued to be made by the Government by having the ordinances re-promulgated by the Governor from time to time. The question is 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.
(Author CA. Yogesh S. Limaye can be reached at email@example.com)