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Cites 10 docs - [View All]
Article 213 in The Constitution Of India 1949
Article 32 in The Constitution Of India 1949
The Bihar Reorganisation Act, 2000
Lakshmidhar Misra vs Rangalal on 20 October, 1949
Rustom Cavasjee Cooper vs Union Of India on 10 February, 1970
Citedby 85 docs - [View All]
Krishna Kumar Singh & Anr vs State Of Bihar on 8 May, 1998
H.S. Jain And Ors., Etc. vs Union Of India (Uoi) And Ors., Etc. on 19 December, 1996
Krishna Kumar Singh & Anr. Etc. ... vs State Of Bihar on 8 May, 1998
Nestle India Limited vs State Of Punjab And Ors. on 12 March, 2004
Public Services Tribunal Bar ... vs State Of U.P. And Ors. on 5 May, 2000

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Supreme Court of India
Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986
Equivalent citations: 1987 AIR 579, 1987 SCR (1) 798
Author: P Bhagwati
Bench: Bhagwati, P.N. (Cj), Misra Rangnath, Oza, G.L. (J), Dutt, M.M. (J), Singh, K.N. (J)
           PETITIONER:
DR. D.C. WADHWA & ORS.

	Vs.

RESPONDENT:
STATE OF BIHAR & ORS.

DATE OF JUDGMENT20/12/1986

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

CITATION:
 1987 AIR  579		  1987 SCR  (1) 798
 1987 SCC  (1) 378	  JT 1987 (1)	 70
 1986 SCALE  (2)1174


ACT:
    Constitution   of	India,	1950,	Article	  213--Scope
of--Power  of the Governor to repromulgate  Ordinances	from
time to time without getting them replaced by Acts of Legis-
lature--Scope  of--Whether a colourable exercise  of  power,
repugnant to the constitutional scheme.



HEADNOTE:
    The State of Bihar adopted a practice of  repromulgating
the ordinances on a massive scale from time to time  without
their provisions being enacted into acts of the legislature.
The practice was that, after the session of the State Legis-
lature	was prorogued, the same ordinances which had  ceased
to  operate were repromulgated containing substantially	 the
same provisions almost in a routine manner. The	 petitioners
challenged  the validity of this practice and in  particular
they challenged the constitutional validity of three differ-
ent ordinances issued by the Governor of Bihar, namely,	 (1)
Bihar  Forest Produce (Regulation of Trade) Third  Ordinance
1983;  (ii) The Bihar Intermediate Education  Council  Third
Ordinance 1983; and (iii) The Bihar Bricks Supply  (Control)
Third  Ordinance 1983, since these Ordinances also  suffered
the same process of repromulgation from time to time.
    Petitioner	No. 1, a Professor of Economics	 in  Gokhale
Institute of Politics and Economics, Pune carried out  thor-
ough  and detailed research in the matter of  repromulgation
of Ordinances by the Governor of Bihar from time to time and
filed the present writ petition as he was interested in	 the
preservation and promotion of constitutional functioning  of
the administration in the country. Petitioner Nos. 2, 3	 and
4  were	 affected by the provisions of the  aforesaid  Ordi-
nances	mentioned at serial no. (i) (ii) and  (iii)  respec-
tively.	 The  provisions of two out of the  aforesaid  three
Ordinances were enacted into acts of the legislature  during
the pendency of the writ petitions and the third  Ordinance,
namely,	 the  Bihar  Intermediate  Education  Council  Third
Ordinance, 1983 is still in operation though a bill incorpo-
rating the provision of this Ordinance is pending considera-
tion  before the State Legislature and it has been  referred
to the Select Committee.
799
     Counsel  for  the	Respondent-State  opposed  the	writ
petitions contending: (i) that the petitioners have no locus
standi	to  maintain the writ petitions, since	out  of	 the
three  Ordinances, two of them had already lapsed and  their
provisions were enacted into Acts of the Legislature and  so
far  as the third Ordinance, namely, the Bihar	Intermediate
Education  Council  Third  Ordinance 1983  is  concerned,  a
legislative proposal has already been introduced for  enact-
ing  its provisions into an Act; (ii) that  the	 petitioners
are not entitled to challenge the practice of repromulgating
ordinances from time to time since they are mainly outsiders
who have no legal interest to challenge the validity of this
practice; (iii) that the question raised before the Court is
academic in nature and should not be adjudicated upon by it;
and  (iv) that the Court is not entitled to examine  whether
the  conditions precedent for the exercise of power  of	 the
Governor  under Art. 213 existed or not for the	 purpose  of
determining the validity of an Ordinance.
Allowing the writ petitions,
     HELD:  (1)	 The Bihar  Intermediate  Education  Council
Ordinance 1983 which is still in operation is struck down as
unconstitutional and void. The Governor cannot assume legis-
lative function in excess of the strictly defined limits set
out in the Constitution because otherwise he would be usurp-
ing a function which does not belong to him. [818F-G]
     In the instant case, the executive in Bihar has  almost
taken  over the role of the Legislature in making  laws	 not
for a limited period but for years together in disregard  of
the constitutional limitations. This is clearly contrary  to
the constitutional scheme and it must be held to be improper
and  invalid.  It is hoped and trusted	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  Legisla-
ture  for enacting those provisions into an Act. There	must
not be Ordinance--Raj in the country. [818D-F]
     2(1)  The rule of law constitutes the core of the	Con-
stitution of India 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	in  flagrant
and systematic violation of its constitutional	limitations,
petitioner No. 1 as a member of the public would have suffi-
cient  interest to challenge such practice by filing a	writ
petition and it would be the constitutional duty
800
of  the	 Supreme Court to entertain the	 writ  petition	 and
adjudicate upon the validity of such practice. [805C-E]
    2(2)  The  Bihar Intermediate  Education  Council  Third
Ordinance 1983 is still in force and it cannot therefore  be
said to be academic to examine the challenge to its  consti-
tutional  validity. Moreover, the question raised  in  these
writ petitions is of highest constitutional importance as it
does  affect  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  unde-
termined. [805F-H]
    S.P. Gupta & Ors. v. Union of India & Ors., [1982] 2 SCR
365, referred to.
    3(1) The power conferred on the Governor to issue  Ordi-
nances	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 Legisla-
ture is not in session. [815C-D]
    3(2) The primary law making authority under the  Consti-
tution	is the Legislature and not the Executive but  it  is
possible  that when the Legislature is not in session,	cir-
cumstances  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  ordi-
nances. 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  Legis-
lative Assembly and agreed to by the legislative Council, if
any.  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 situation
which requires immediate action and which cannot wait  until
the legislature reassembles, must necessarily have a limited
life. [815D-G]
    3(3) The power to promulgate an Ordinance is essentially
a power to be used to meet an extraordinary situation and it
cannot be
801
allowed	 to  be "perverted to serve political ends".  It  is
contrary  to all democratic norms that the Executive  should
have the power to make a law, but in order to meet an  emer-
gent situation, this power is conferred on the Governor	 and
an  Ordinance  issued by the Governor in  exercise  of	this
power  must, therefore, of necessity be limited in point  of
time.  That is why it is provided that the  Ordinance  shall
cease  to  operate on the expiration of six weeks  from	 the
date  of  assembling of the  Legislature.  The	Constitution
makers expected that if the provisions of the Ordinance	 are
to  be continued in force, six weeks time should  be  suffi-
cient for the Legislature to pass the necessary Act. But  if
within this time the Legislature does not pass such an	Act,
the Ordinance must come to an end. [816A-C]
    3(4)  The Executive cannot by taking resort to an  emer-
gency  power exercisable by it only when the Legislature  is
not  in	 session, take over the law-making function  of	 the
Legislature. That would be clearly subverting the democratic
process which lies at the core of our constitutional scheme,
for  then the people would be governed not by the laws	made
by  the legislature as provided in the Constitution  but  by
laws  made by the Executive. The Government  cannot  by-pass
the  Legislature and without enacting the provisions of	 the
Ordinance  in  an Act of the Legislature,  repromulgate	 the
ordinance as soon as the Legislature is prorogued. [816E-F]
    3(5)  A  constitutional authority cannot  do  indirectly
what  it  is  not permitted to do directly. If	there  is  a
constitutional	 provision  inhibiting	the   constitutional
authority  from doing an act, such provision cannot  be	 al-
lowed  to  be defeated by adoption of any  subterfuge.	That
would  be clearly a fraud on the  constitutional  provision.
[816H; 817A-B]
    4. When the constitutional provision stipulates that  an
Ordinance  promulgated by the Governor to meet	an  emergent
situation  shall cease to be in operation at the  expiration
of six weeks from the reassembly of the Legislature and	 the
Government  if it wishes the provisions of the Ordinance  to
be continued in force beyond the period of six weeks has  to
go  before the Legislature which is the	 constitutional	 au-
thority	 entrusted  with the law making function,  it  would
most  certainly	 be a colourable exercise of power  for	 the
Government to ignore the Legislature and to repromulgate the
Ordinance  and	thus to continue to regulate  the  life	 and
liberty of the citizens through Ordinance made by the Execu-
tive.  Such a stratagem would be repugnant to the  constitu-
tional	scheme, as it would enable the Executive  to  trans-
gress  its  constitutional limitation in the matter  of	 law
making in an emergent situation and to covertly and indi-
802
rectly	arrogate  to itself the law making function  of	 the
Legislation.  [ 817D-G]
    5. The court cannot examine the question of satisfaction
of the Governor in issuing an Ordinance, but the question in
the present case does not raise any controversy in regard to
the  satisfaction  of  the Governor. The  only	question  is
whether	 the  Governor has power to  repromulgate  the	same
Ordinance successively without bringing it before the Legis-
lature. That clearly the Governor cannot do. [818B-C]
    Bharat Singh v. Empire, AIR 1931 PC 111; Rajaram Bahadur
Kamlesh Narain Singh v. Commissioner of Income Tax, AIR 1943
PC  153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC  59
and  R.C. Cooper v. Union of India, [1970] 3 SCR 530,  inap-
plicable.



JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition Nos. 412-15 of 1984 (Under Article 32 of the Constitution of India. ) Soli J. Sorabji, J.B. Dadachanji, Ravinder Narain, T.N. Ansari, Joel Pares, S. Sukumaran and Dr. Chandrachud for the Petitioners.

L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Ms. S. Relan for the Respondents.

The Judgment of the Court was delivered by BHAGWATI, CJ. These petitions under Article 32 of the Constitution raise a short 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 question is, 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 Legisla- ture are not in session. The facts giving rise to these writ petitions are disturbing and we may briefly state them as follows:

These writ petitions have been filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating 803 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. Petitioner No. 1 is a professor of economics is the Gokhale Institute of Politics and Economics, Pune and he has spent a number of years in studying the constitutional functioning of Indian politics. He is deeply interested in the preservation and promotion of constitutional functioning of the administra- tion in the country. He has made a deep and profound study of the practice which is being followed in the State of Bihar of promulgating and re-promulgating ordinances from time to time without enacting them into Acts of the Legisla- ture. Petitioner No. 2 is an occupancy Raiyat of village Anigara, Kunti Police Station in the district of Ranchi. He grows forest produce in his Raiyat land. Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 imposes restriction on the sale of specified forest produce and it further created State monopoly for sale and purchase of such forest produce. Clause (7) of this ordi- nance conferred power on the State Government to fix the price at which the specified forest produce may be purchased by it or by any authorised forest officer or agent from the growers of such forest produce. The effect of these provi- sions in the Bihar Forest Produce (Regulations of Trade) Third Ordinance was that petitioner No. 2 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 constitu- tional validity of this ordinance. Petitioner No. 3 is a student studying in Intermediate (Science) Class in A.N. College, Patna. He was affected by the Bihar Intermedi- ate Education Council Third Ordinance. It is not necessary to refer to the provisions of this ordinance since it could not be seriously disputed on behalf of the respondents that the provisions of this ordinance affected, curtailed and/or regulated the rights of petitioner No. 3 or at least had the potential of doing so and petitioner No. 3 therefore chal- lenged the constitutional validity of this ordinance. Simi- larly petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he is the proprie- tor 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 804 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.

It was contended on behalf of the respondents that the petitioners had no locus standi to maintain this writ peti- tion since out of the three ordinances challenged on behalf of the petitioners, two of them, namely, Bihar Forest Pro- duce (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 repromulgat- ing ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validi- ty of this practice. We do not think this preliminary objec- tion raised on behalf of the respondents is well-founded. 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 incorpo- rating the provisions of this ordinance is pending consider- ation before the State Legislature and it has been referred to a Select Committee and the right of petitioner No. 3 to pursue a particular course of study is vitally affected by the provisions contained in that ordinance. Besides peti- tioner 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 particu- lar 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 com- plaining of is a practice which is being followed by the State of Bihar of re-promulgating the ordinances 805 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. In S.P. Gupta & Ors. v. Union of India & Ors., [1982] 2 SCR 365 one of us (Bhagwati, J. as he then was) 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 enforce- ment of such public duty and observance of such constitu- tional or legal provision."

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 con- stitutional 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. We must therefore reject the preliminary conten- tion raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions. The respondents then contended that in any event the question raised before the Court in these writ petitions was academic in nature and should not be adjudicated upon by the Court. But this contention urged on behalf of the respond- ents is also without force since the Bihar Intermediate Education Council 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 con- stitutional 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 limita- tions on the power of the Governor to re-promulgate ordi- nances will remain undetermined. We are of the view that this question has great public importance and it must be decided by us on merits in order to afford guidance to the Governor in the exercise of 806 his power to repromulgate ordinances from time to time. We shall now proceed to state how the Governor in the State of Bihar has been indulging in the practice of repro- mulgating 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 repromulgation of ordinances by the Governor of Bihar from time to time and the result of this research was com- piled by him and published in a book entitled "Repromulga- tion 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 ordi- nances repromulgated 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 repromulgation from time to time. Out of these 256 ordinances 69 were repromulgated several times and kept alive with the prior permission of the Presi- dent of India. The following table would indicate the cate- gorisation of these 256 ordinances by reference to their life groups:--

	Life-Groups		  Number of
	(Years)			  Ordinances
       Upto 1			  59
       1--2			  51
       2--3			  45
       3--4			  21
       4--5			  21
       5--6			  21
       6--7			  11
       7--8			   8
       8--9			   4
       9-- 10			   4
       10--11			   6
       11--12			   4
       12--13			----
       13-- 14			   1
				----
		   Total	 256

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 807 by the methodology of repromulgation. 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 repromulgation:

s.   Name of the Ordinance    Date on which	 Life of the
No.			      First		 Ordinance
			      Promulgated
1	      2			  3	     4
					   Year Months	Days
i. The Bihar Sugarcane	      13.11.1968    13	  11	 19
   (Regulation of Supply
   and Purchase) Ordinance
   1968 (Ordinance No. 3 of
   1968)
ii. The Bihar Panchayati      14.8.1970	    11	   4	18
    Raj (Amending and
    Validating) Ordinance
    1970 (Ordinance No. 3
    of 1970)
iii. The Bihar Hindu Religious	5.9. 1970   11	   3	26
      Trusts (Amendment)
      Ordinance, 1970 (Ordi-
      nance No. 5 of 1970)
iv. The State Aid to	     10.9.1970	    11	   3	21
    Industries (Amendment)
    Ordinance, 1970 (Ordi-
    nance No. 8 of 1970)
v.   The Bihar Bihar  Khadi  and  17.9.1970  11	    3	 14
     Village Industries
     (Amendment) Ordinance,
     1970 (Ordinance No. 9
     of 1970)

vi. The Bihar Soil and Water 10.2.1971 10 10 19 Conservation and Land Development Ordinance, 1971 (Ordinance No. 16 of 1971) vii. The Bihar Panchayati 15.5.1971 10 7 17 Raj (Amendment) Ordi-

nance, 1971 (Ordinance No. 54 of 1971) 808 viii. The Bihar Municipal 20.5.1971 10 7 12 (Third Amendment) Ordinance, 1971 (Ordi-

nance No. 57 of 1971) ix. The Patna Municipal 22.5.1971 10 7 10 Corporation (Amendment) Ordinance, 1971 (Ordinance No. 58 of 1971) x. The Bihar State Housing 14.9.1971 10 3 17 Board Ordinance, 1971 (Ordinance No. 101 of 1971) xi. The Bihar Co-operative 7.10.1971 10 2 25 Societies (Second Amend-

ment) Ordinance, 1971 (Ordinance No. 103 of 1971) xii. The Bihar Agricultural 14.12.1972 9 10 16 Produce Markets (Amend-

ment) Ordinance, 1972 (Ordinance No. 6 of 1972) xiii. The Bihar Medical Educa- 14.5.1972 9 7 18 tional Institutions (Regulation and Control) Ordinance, 1972 (Ordinance No. 69 of 1972) xiv. The Rajendra Agricultural 15.1.1973 8 11 17 University (Amendment) Ordinance, 1973 (Ordinance No. 2 of 1973) xv. The Bihar Panchayati 22.2.1973 8 10 7 Raj (Validating) Ordinance 1973 (Ordinance No. 5 of 1973) xvi. The Bihar Panchayat 22.2.1973 8 10 7 Samitis and Zilla Parishads (Amending and Validating Ordinance, 1973 (Ordinance No. 6 of 1973) xvii. The Bihar Khadi and 1.10.1973 8 3 0 Village Industries (Amendment) Ordinance, 1973 (Ordinance No. 122 of 1973) 809 xviii. The Motor Vehicles 20.5.1971 7 8 17 (Bihar Amendment) Ordi-

nance, 1971 (Ordinance No. 56 of 1971) xix. The Bihar State Aid to 27.4.1977 7 8 4 Industries (Second Amend-

ment) Ordinance, 1974 (Ordinance No. 56 of 1974) xx. The Bihar Irrigation Laws 27.8.1974 7 4 3 (Amendment) Ordinance, 1974 (Ordinance No. 169 of 1974) xxi. The Bihar Irrigation Field 29.8.1974 7 4 3 Channel (Amendment) Ordi-

nance 1974, (Ordinance No. 170 of 1974) xxii. The Bihar Soil and Water 16.9.1974 7 3 15 Conservation and Land Development (Amendment) Ordinance, 1974 (Ordi-

nance No. 174 of 1974-) xxiii. The Bihar Gramdan 26.2.1972 6 5 27 (Amendment) Ordinance 1972 (Ordinance No. 12 of 1972) xxiv. The Bihar Primary Edu- 5.9.1970 6 3 26 cation (Amendment) Ordi-

nance, 1970 (Ordinance No. 6 of 1970) xxv. The Bihar Regional Deve- 19.9.1974 6 3 12 lopment Authority Ordi-

nance, 1974 (Ordinance No. 175 of 1974) xxvi. The Chota Nagpur and 29.10.1974 6 2 3 Santhal Parganas Autono-

mous Development Autho-

rity (Fifth Amendment) Ordinance, 1975 (Ordi-

nance No. 197 of 1975) xxvii. The Bihar Motor Vehicle 29.11.1975 6 1 2 Taxation (Fifth Amendment) Ordinance, 1975 (Ordi-

nance No. 207 of 1975) 810 xxxviii. The Bihar Case (Amend- 2.12.1975 6 1 0 ment) Ordinance, 1975 (Ordinance No. 209 of 1975) xxix. The Bihar Public Land 5.12.1975 6 0 27 Encroachment (Amendment) Ordinance, 1975 (Ordi-

nance No. 210 of 1975) xxx. The Bihar Motor Vehicles 5.12.1975 6 0 27 Taxation (Sixth Amend-

ment) Ordinance; 1975 (Ordinance No. 212 of 1975) xxxi. The Bihar Motor Vehicles 5.12.1975 6 0 27 Taxation (Seventh Amend-

ment) Ordinance, 1975 (Ordinance No. 214 of 1975) 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 repro- mulgated 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 repromulgated 54 ordinances with the same provisions and on 17th January, 1973, 49 ordinances were repromulgated by the Governor of Bihar containing substantially the same provisions and again on 27th April, 1974, 7 ordinances were repromulgated and on 29th April, 1974, 9 ordinances were repromulgated with substantially the same provisions. Then again on 23rd July, 1974, 51 ordinances were repromulgated which included the self-same ordinances which had been repromulgated on 27th and 29th April, 1974. On 18th March, 1979, 52 ordinances were repromulgated while on 18th August, 1979, 51 ordinances were repromulgated containing substantially the same provi- sions. 49 ordinances were repromulgated on 28th April, 1979 and on 18th August, 1979, 51 ordinances were repromulgated. 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 repromulgated while on 19th January 1981, the number of ordinances repromulgated was as high as 53. The following table shows how many times the same Ordinance was rePromul- gated in order to keep its provisions in force:

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Name of Date of first Last date How many Total the Ordi- promulgation of re-pro- times period nance mulgation re-pro- of the mulgated life of ordinance 1 2 3 4 5

1. The Bihar 13.1.68 12.8.81 39 about 14 years Sugarcane (Regulation of supply and Purchase) Ordinance, 1968.

2. The Bihar 14.8.70 19.1.81 35 about 12 years Panchayat Raj (Amending and Validating) 1970.

3. The Bihar 5.9.70 22.4.81 37 about 12 years Hindu Reli-

gious Trusts (Amendment) Ordinance, 1970.

4. The Bihar 10.9.70 23.4.81 34 about 12 years State Aid to Industries (Amendment) 1970.

5. The Bihar 17.9.70 19.1.81 35 about 12 years Khadi and Village Industries (Amendment) 1970.

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 812 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 ulti- mately 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 repromulgated 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 Ordi- nance 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 repromulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness. Immediately at the conclusion of each ses- sion 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 repromulgated", so that all those ordinances are positively repromulgated before the date of their expiry. This circular letter also used to advise the officers that if the old ordinances were repromulgated 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 repromulgation of ordinances". It would be prof- itable to reproduce this circular letter dated 29th July. 1981 as it indicates the routine manner in which the ordi- nances were repromulgated by the Governor of Bihar:

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"Letter No. P.A./Misc. 1040/80-872 GOVERNMENT OF BIHAR DEPARTMENT OF PARLIAMENTARY AFFAIRS From: Basant Kumar Dubey Special Secretary to the Govt.

To: All Commissioners and Secretaries, All Special Secre- taries, All Additional Secretaries, All Heads of Departments Patna 15--dated 29th July, 1981 Subject: Regarding re-promulgation of Ordinances. Sir, 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 Consti- tution all the Ordinances cease to be in force after six weeks of the 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 repro- mulgated 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 repromulgated before 11.8.1981.

If the old ordinances are repromulgated in their original form without any amendment, then the approval of the Council of Ministers is not necessary.

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This should be given the top-most priority and necessary action should be taken immediately.

Yours faithfully, Sd/- Basant Kumar Dubey Special Secretary to Bihar Government." This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordi- nances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it neces- sary for the Governor to take immediate action by way of repromulgation 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 ordi- nances repromulgated 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. The determination of this question depends on the true interpretation of Article 213 which confers power on the Governor of a State to promulgate ordinances. This Article in so far as material, reads as follows: "213. (1) If at any time, except when the Legislative Assem- bly of a State is in session, or where there is a Legisla- tive 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. ........................................................ (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 Ordi- nance--

(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 815 expiration of six weeks from the reassembly of the Legisla- ture, or if before the expiration of that period a resolu- tion 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 these dates for the purposes of this clause ......................................." 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 Consti- tution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circum- stances may arise which render it necessary to take immedi- ate 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 Gover- nor 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 Legisla- ture 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. The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisa- ble 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 816 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." It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature. The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, this time should be sufficient for the Legislature to pass the necessary Act. But if within this time the Legislature does not pass such an Act, the Ordinance must come to an end. The Executive cannot continue the provisions of the Ordinance in force without going to the Legislature. 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. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law- making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enact- ing the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued. Of course, there may be a situa- tion where it may not be possible for the Government to introduce and push through in the Legislature a Bill con- taining 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 Legis- lature in a particular Session may be short, and in that event, the Governor may legitimately find that it is neces- sary 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 repro- mulgation. It is settled law that a constitutional authority can-

817

not do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the con- stitutional authority from doing an Act, such provision cannot be allowed to be defeated by adoption of any subter- fuge. That would be clearly a fraud on the constitutional provision. This is precisely what was pointed out by Muk- harji, J. speaking for the Court in K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, [1954] 1 SCR 1: "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 constitu- tional prohibitions by employing an indirect method." So also in P. Vajravelu Mudaliar v. Special Deputy Collec- tor, Madras & Anr., [1965] 1 SCR 614 a Constitution Bench of this Court observed that when it is said that Legislation is a colourable one, what it means is that the Legislature has transgressed its legislative power in a covert or indirect manner, if it adopts a device to outstep the limits of its power. When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature_which is the constitutional au- thority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Execu- tive. Such a strategem would be repugnant to the constitu- tional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arro- gate to itself the law making function of the Legislature. Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the Court is not entitled to examine wheth- er the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an Ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh & Ors. v. Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh v. Com- missioner of Income Tax, AIR 1943 PC 818 153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper v. Union of India, [1970] 3 SCR 530. We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here. It is true that, according to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satis- faction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance suc- cessively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, repromulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the' role of the Legislature in making laws, not for a limited period, but for years together in disregard of the constitu- tional limitations. This is clearly contrary to the consti- tutional scheme and it must be held to be improper and invalid. 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 Legisla- ture, 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 opera- tion as unconstitutional and void. Petitioner No. 1 has done enormous research and brought this reprehensible practice of the Government of Bihar to the notice of the Court and we would therefore direct that the State of Bihar shall pay to Petitioner No. 1 a sum of Rs. 10,000 (rupees ten thousand only,) as and by way of cost of the writ petitions.

M.L.A.						   Petitions
allowed.
819