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:
811
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:
813
“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.
814
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