In the case of D C Wadhwa v. State of Bihar, the power of the governor under Article 213 of the Indian Constitution to re-promulgate ordinances for an indefinite period has been questioned by the Apex Court of India.
Repeated promulgation of the same ordinance has become a major challenge of the country to curb the excessive use of power by the executive wing of the country. During the Indian constitutional history, there have been numerous emergency circumstances where it was necessary for the executive to bring a law or resolution and implement it with an immediate effect in the country.
Being an executive authority, it is the constitutional power bestowed upon the President and the Governors of the state to take immediate action in such emergency situations when both the houses of the parliament are not in session. This law-making power which is primarily the power of the legislative is extended to the executive branch through the process of the promulgation of ordinances.
The promulgated ordinances then need to receive the permission of the parliament to be converted into proper legislation within 42 days from the commencement of the parliamentary sessions. However, this re-promulgation of ordinances has given a large room for the misuse of executive power and mechanism in the country as the state governors tend to re-promulgate an ordinance for an indefinite period of time. This questions the inadequacy of the constitutional machinery in the country and the power granted to the state’s executive authority, i.e. the governor.
The constitutional provisions enshrined under Articles 123 and 213 of the Indian Constitution deals with the ordinance making power of the executive. Article 123 of the Indian Constitution states that the president of the country has the power to promulgate an ordinance only when both the houses of parliament are not currently in session and when an emergency situation exists. Such power of the president to promulgate an ordinance has the same force and legal effect as that of enactment of the parliament.
Further, Article 213 talks about the power of a state governor to promulgate an ordinance in only three situations: when the state legislative assembly is not in session or where there are two houses in the state legislature, both are not in session, and when an extraordinary and emergency situation exists in the country. Such ordinance promulgated by the governor of a state will have the same effect and force as that of enactment of the state legislature.
It is to note that the ordinance has to be laid before the two houses of the legislature and it ceases to operate after the expiry of six weeks from the reassembly of both houses. In essence, this exception and extraordinary power are given to the executive on promulgating ordinances shall not be used as a substitute for the lawmaking power of the parliament of the country or the legislature of the state.
Factual Background of the case
The facts of the case state that Petitioner No. 1 in the present case was an economics professor who was conducting research on land tenures in the state of Bihar. Following his research, he brought to the notice of the court of law that between the time period of 1967 and 1980, there was the promulgation of around 256 ordinances in the state. These promulgated ordinances were in force for quite a long period of time, mostly ranging from one year to fourteen years by way of re-promulgation of ordinances from time to time.
Out of the total 256, around sixty-nine ordinances were re-promulgated with the prior assent of the president a number of times. It is noteworthy that the ordinances were being re-promulgated by following the due procedure of the parliament to keep them in force while the executive can take over the function of law-making in the state of Bihar.
Owing to the inefficiency, the Bihar State Assembly failed to work and function effectively. The promulgating and the re-promulgating of the ordinances by the state governor for an indefinite period of time without examining the requirement of the provisions of the ordinance at that period of time were challenged before the court.
Therefore, a writ petition was filed before the Apex Court of India under Article 32 of the Indian constitution, challenging the scope and purpose of article 213 of the constitution which deals with the governor’s power of promulgation of ordinances.
Consequently, the constitutional validity of three ordinances passed by the Bihar Governor is under question that is:
- Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983;
- The Bihar Intermediate Education Council Third Ordinance, 1983;
- The Bihar Bricks Supply (Control) Third Ordinance, 1983.
The aforementioned ordinances were challenged by four petitioners. Petitioner No. 1 is an economics professor who conducted deep research in the constitutional machinery in the country which specifically dealt with promulgation and re-promulgation of the ordinances. Petitioner No. 2 is a village occupant who deals in the production and distribution of the forest produce but due to clause mentioned in the concerned first ordinance i.e. Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983 the absolute authority of the seller of the forest produce to decide the prices and quantity to be sold has been restricted.
The state government took complete control over the disposal of the forest produce which was in infringement of the fundamental rights of the petitioner, questioning the constitutional validity of the ordinance. Additionally, an intermediate student of A.N. College, Patna contended to be adversely affected by the restriction of his rights or has the potential to do so and thus have challenged the constitutional validity of the Bihar Intermediate Education Council Third Ordinance.
The provisions of the Bihar Brick Supply (Control) Third Ordinance have led to the manufacture, distribution, and functioning of the brick industry to be wholly regulated by the State itself. The ordinance has led to Petitioner No. 4, a brick manufacturing operator who has filed a writ petition, challenging the constitutional validity of the ordinance.
Issues and Fact of Law
- Whether the re-promulgation of ordinances by the Governor of the State of Bihar amounted to misuse of the power conferred to the governor by article 213 of the Indian Constitution?
Contentions of the Petitioners
The Appellants who were represented by the Adv. Soli J. Sorabji made the following contentions:
- The State was embarked with a complete monopoly over the regulation of purchasing and selling the forest produce through the provision under Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 which is against the policies of the constitutional mandate.
- The price at which the forest produce may be purchased and sold is solely decided by the state government or by any other forest officer who is appointed by the state government and is in charge of the produce. This is stated under Clause (7) of the ordinance.
- The price at which the bricks are manufactured, transported, disposed, and consumed is deliberated by the state government, and the state is declared as the sole proprietor under the Bihar Brick Supply (Control) Third Ordinance.
- The practice of re-promulgation of ordinances by the Bihar state government is done with a deliberate intention to keep the ordinances alive even during the non-functioning of the parliamentary sessions and the practice has been continuing for an indefinite period of time.
Contentions of the Respondent
The respondents who were represented by Adv. L.N. Sinha has mainly contented for the following outlined points:
- The provisions of the Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983 and the Bihar Bricks Supply (Control) Third Ordinance, 1983 have lapsed and are passed by the parliament to enact them as legislation which renders the petitioners without a locus standi to file a writ petition in the supreme court. The third ordinance which is the Bihar Intermediate Education Council Third Ordinance has already been introduced in the parliament in the form of a legislative proposal.
- Petitioner No. 1 doesn’t have any legal interest to challenge the present case, considering he is an outsider who is not entitled to question the re-promulgation of ordinances in the form of a writ petition.
- The respondent contended that the writ petition filed against the Bihar Intermediate Education Council, Third Ordinance is purely academic in nature and should not be interfered with by the court of law.
- The condition in which such an ordinance was introduced needs to persist for an ordinance to remain valid even after its re-promulgation by the Governor under Article 213 of the Indian Constitution.
The Bihar Government was of the opinion that it’s not necessary for the ordinance to be only passed by the state legislature and that the executive authority is enough to promulgate the ordinances whenever necessary. This is clearly against the principles of the constitution of India.
On that note, the Supreme Court in the present case has ruled that the re-promulgation practice of the government to represent the legitimate exercise of legislative power can’t be justified. Following observations were made:
- The power of the governor to issue an ordinance under Article 213 should be exercised only during the period of utmost necessity and when the two houses of the state legislature are not in session.
- It is essential that every promulgated ordinance by the governor should be introduced before the houses of the parliament within six weeks of its reassembly. The maximum life of an ordinance is seven and a half months unless it is converted into an enactment or has faced legislature’s disapproval before its expiry period.
- The primary law-making authority in India is the legislature. Only when the legislature is not in function, the executive operates the law-making process during such emergency situations. An ordinance issued by the governor under article 213 is of emergent power and is exercisable only when the parliament is not currently in session and requires immediate action on the emergency situation.
- The shift of the law-making power to the executive in emergency situations is contrary to the norms of a democratic nation. The power is to be exercised only during the time of utmost necessity
- The Indian Constitutional principles signify that the continuous promulgation of ordinances is not a good remedy as at the same time the legislature can make the ordinance an enactment. The ordinance cannot be continued forever by means of re-promulgation without going to the legislature.
The judges in the present case opined that the re-promulgation of an ordinance should be considered as colourable legislation because the executive is bestowed with the unreasonable power on ordinance promulgation and re-promulgation which is beyond the power prescribed under the constitution. As per the doctrine of colourable legislation, ‘a constitutional authority cannot do indirectly what it is not permitted to do directly.’ If there is a provision that provides a constitutional authority to the executive to do a particular act, it shouldn’t be allowed to be infringed due to some underlying exception as it would amount to fraud.
The doctrine is also explained in the landmark case of KC Gajapati Narayan Deo & Ors. v. State of Orissa.
“In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is. Clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method.”
As correctly held in another leading case , the legislation is said to be colourable in nature if the legislative nature of an enactment or legislation is converted for the indirect use of it to benefit and allow the executive authority to exceed their constitutional powers. When the provision regarding issuance of an ordinance provides that the ordinance can be promulgated in an emergency situation but will cease to operate on the expiration of six-weeks for the assembly of the houses, but if the state government has a choice to validate the ordinance beyond six-months, the legislation is said to be of colourable nature.
Generally, it is done by the government to meet the political needs which make the authority having the colourable exercise of their power. The life and liberty of the citizens of a country may be regulated in the forms of issuing ordinances that are actually formed by the executive, instead of the legislature. Such opting of strategy would lead to a compromise on the constitutional norms allowing the executive to infringe the constitutional laws made specifically to deal with the emergent situations.
It’s a true fact that the court does not have the authority to examine the scope and powers of the Governor but there’s no discrepancy regarding the satisfaction of the governor, as raised in the case. Therefore, the court held that whatever the ordinance may come into being, it must seek the approval of the legislature and should be formulated into an enactment, if necessary. There is no need for any interpretation of a provision that is in clear contravention with the constitutional principles and anything contrary to constitutional norms should be held invalid. Hence the Court has held 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.”
The Supreme Court has finally held that the Bihar Intermediate Education Council Ordinance, 1983 should be held constitutionally invalid and will no longer be made applicable. Petitioner No. 1 who has done an enormous amount of research work concerning the re-promulgation of Ordinances by the state government would receive a sum of Rs. 10,000 from the government for the inconvenience caused and for filing the writ petitions.
The Supreme Court of India in its decision struck down the irrational exercise of an ordinance making power a “subversion of the democratic process” and “colourable exercise of power”. The court further held that re-promulgation of an ordinance is a fraud and misuse of the power granted to the executive under constitutional provisions, and also a subversion of the democratic process. The ordinance-making process is not immune to judicial review by the court and the superior court can invalidate an ordinance if it’s promulgated in a colourable manner.
The power to promulgate an ordinance as envisaged under the Indian constitution should be used only when extraordinary emergency circumstances exist and not to meet the political needs and agendas of any individual. Also, the law-making power resides with the legislature, the authority to implement these laws lies with the executive, and the interpretation of these laws is done by the judiciary. The executive authority shall not perform the function of the law-making process that is primarily assigned only to the legislature. If this is not taken care of, the core of the constitutional mandate will be destroyed if the Indian citizens are governed by the laws which are made by the executive and not the legislature.
 (1987) 1 SCC 378.
 P. Vajravelu Mudaliar v. Special Deputy Collector, Madras & Anr 1 SCR 1.
  1 SCR 614