This article was written by Bhuvan Malhotra and further updated by Pruthvi Ramkanta Hegde. This article explains the facts, issues and judgement of the case of Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors (1986) based on an ordinance. The article also covers the overview of an ordinance and the power of the issuance of an ordinance by the Governor as enumerated under Article 213 of the Constitution of India.
Table of Contents
Introduction
In any democratic country, the Constitution is like the rulebook that everyone must follow. It sets out how the government should work and what rights the citizens have. The Indian Constitution is considered a ‘mother law’ in India. The organs or wings of the Government, i.e., executive, legislature and judiciary, while making decisions, enacting any laws and pronouncing any judgments respectively, should ensure that the said functions are done in accordance with the provisions of the Constitution of India.
Normally, laws are made by the legislature, which is a group of elected representatives who debate and vote on them. However, there is a provision called an ordinance that allows the President or Governor to make laws without going through the usual legislative process. An ordinance is a temporary law that can be issued by the Governor or President when the legislature is not in session. It is meant to be used in emergencies or urgent situations when waiting for the legislature to meet and pass a law would be impractical. However, when these ordinances are repeatedly reissued without any changes for long periods of time, what may be the consequences? The same was discussed in the case of Dr. D. C. Wadhwa & Ors. v. State of Bihar & Ors. (1987) a discussion of which will be further elaborated in this article.
Details of Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)
Name of the case
Dr. D. C. Wadhwa & Ors. v. State of Bihar & Ors.
Date of Judgment
December 20, 1986
Supreme Court Bench
- The then Honourable Chief Justice of India, P.N. Bhagwati
- Honourable Justice K.N. Singh
- Honourable Justice M.M. Dutt
- Honourable Justice G.L. Oza
- Honourable Justice Ranganath Misra
Parties to the case
Petitioner
Dr. D.C Wadhwa & Ors
Respondent
State of Bihar & Ors
Equivalent citations
AIR 1987 SC 579, 1986/INSC/280, JT 1987 (1) SC 70, 1986 (2) SCALE 1174, (1987) 1 SCC 378, [1987] 1 SCR 798
Type of the case
Writ Petition Nos. 412-15 of 1984
Represented by
Petitioner
Advocates namely Soli J. Sorabjee, J.B. Dadachanji, Ravinder Narain, T.N. Ansari and Joel Peres.
Respondents
Advocates namely L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Sushma Relan.
Author of the judgement
Justice P.N. Bhagwati
Court Name
Honourable Supreme Court of India
Related laws
Article 213 and Article 32 of the Constitution of India, 1950.
Legal aspects surrounding Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)
Ordinance
Meaning
In general, an ordinance is a law issued by the President of India based on the recommendation of the Union Cabinet, when Parliament is not in session. Likewise, Governors of Indian states can also enact ordinances when the respective Legislative Assembly (or both the Legislative Assembly and Legislative Council, if it is a bicameral legislature) is not in session.
History of an ordinance
The history of ordinances in India began with the Government of India Act, 1919. Even though the term ‘ordinance’ was not used, this Act allowed laws to be made without the usual legislative process if the Governor’s council didn’t pass them. If the Governor thought a Bill was crucial and urgent for their duties, they could make it into law, even if the council disagreed. This set the stage for ordinances, which are temporary laws issued by the President or Governor when the legislature is not in session. They have since become common in India’s legal system, but are subject to certain rules and limitations.
The Government of India Act, 1919 contains a provision in Section 13 that allows for the enactment of a Bill into law, even if it has not been passed by the Legislative Council. This provision comes into effect when the Governor’s Legislative Council refuses to introduce a Bill or fails to pass it in a form recommended by the Governor. In such cases, the Governor can certify that the passage of the Bill is essential for fulfilling their responsibilities regarding the subject matter.
As a result, even if the council does not agree, the Bill will be considered as passed. Then, with the Governor’s signature, it can become a law. This law can either be exactly as it was first introduced or in a version that was suggested for the Council’s consideration. This provision lets laws be made without going through the normal steps of the legislative process.
Power of the Governor to promulgate Ordinances when the State Legislature is not in session
Article 213 of the Indian Constitution deals with the Governor’s power to make laws called ordinances when the State Legislature is not in session. Article 213 states that:
- If the Governor thinks urgent action is needed when the State Legislative Assembly (or both Houses if there is a Legislative Council) is not in session, he or she can issue ordinances.
- The Governor cannot issue an ordinance if the President’s permission is needed for a similar law, or if the Governor would normally send such a law for the President’s consideration, or if a similar law would be invalid without the President’s approval.
- Ordinances have the same power as laws passed by the State Legislature but they must be presented to the Legislative Assembly (or both Houses) and will expire after six weeks unless approved by the Legislature. The Governor can also cancel an ordinance at any time.
- If an ordinance includes something that would not be allowed in a regular law passed by the legislature, that part of the ordinance becomes invalid. However, if the President instructed the Governor to issue the ordinance, it is treated as if the President had approved it after the legislature passed it.
Separation of power
The principle of separation of powers is a foundational structure of government where authority is distributed among several branches. Typically, in democratic nations, these branches are the legislature, the executive, and the judiciary. This theory holds that in a free democracy, each branch should have clear and separate roles and responsibilities. They operate independently to prevent conflicts by ensuring that one branch does not interfere with the functions of the others. This means that the executive should not perform legislative or judicial duties, the legislature should not undertake executive or judicial tasks, and the judiciary should not engage in legislative or executive actions. This separation helps maintain a balance of power and prevents any one branch from becoming too dominant.
Facts of Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)
In Bihar, there was a common practice in which the government repeatedly re-issued ordinances without turning them into permanent laws through the legislature. After the State Legislature’s session ended, the same ordinances were reintroduced with the same content. Three specific ordinances which were challenged for this practice are:
- Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 – This ordinance regulated the trade of forest produce in Bihar. It had rules about how forest products could be bought, sold, or transported.
- Bihar Intermediate Education Council Third Ordinance, 1983 – This ordinance is related to the Bihar Intermediate Education Council. It has provisions regarding the functioning or management of intermediate education in Bihar.
- Bihar Bricks Supply (Control) Third Ordinance, 1983 – This ordinance dealt with the control of brick supply in Bihar. It contained regulations on how bricks were manufactured, distributed, or sold within the state.
All three of these ordinances were repeatedly reintroduced. However, the ordinances were reintroduced without being turned into permanent laws, which led to questioning the validity of these ordinances.
In this case, the petitioner (1), Dr. D.C. Wadhwa was a professor of economics in Pune and had filed a PIL challenging the general power of the Governor to re-promulgate various ordinances by the Governor of Bihar. The petitioner had extensively researched and published about the misuse of the ordinance-making power of the Governor of Bihar because the Government of Bihar had promulgated 256 ordinances between 1967 and 1981 and these 256 ordinances were kept alive for periods ranging between one and fourteen years by mechanically re-promulgating the ordinances without changing any content of the ordinance or trying to turn it into an Act.
Petitioners (2, 3, and 4) were individuals directly affected by the provisions of the ordinances mentioned above. Petitioner No. 2 was a farmer who grew forest produce on his land in a village called Anigara. He was affected by Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983. This ordinance restricted the sale of certain forest produce and created a state monopoly for their sale. Clause (7) of this ordinance allowed the government to set the prices at which it or authorised officers could buy forest produce from growers like Petitioner No. 2. These provisions limited his ability to sell his produce freely, so he was interested in challenging the constitutionality of the ordinance.
Petitioner No. 3 was a student studying in Intermediate (Science) Class at A.N. College, Patna, which was affected by the Bihar Intermediate Education Council Third Ordinance, which regulated aspects of their education. While the specifics of this ordinance are not discussed, it was clear that it affected or could potentially affect the rights of Petitioner No. 3, thus challenging its constitutionality.
Similarly, Petitioner No. 4 owned a brick manufacturing business called South Bihar Agency in Patna. They were impacted by the Bihar Brick Supply (Control) Third Ordinance, which gave the State Government control over various aspects of brick manufacturing and sales, including prices. These provisions affected the petitioner’s business, so they also challenged the constitutionality of this ordinance.
During the proceedings of the writ petitions, the provisions of two of the mentioned ordinances were enacted into law by the legislature. However, the third ordinance, i.e., the Bihar Intermediate Education Council Third Ordinance, 1983, was still in operation. There was a Bill incorporating its provisions that had been pending consideration before the State Legislature, which had been referred to the Select Committee for further evaluation.
The general power of the Governor to re-promulgate the ordinance was examined by the court as several ordinances had been re-promulgated over thirty times. The immediate challenge was to the three ordinances that were kept alive for a period of 10-14 years.
Issues of the case
The main issue contested was whether the Governor could mechanically re-promulgate the ordinance for an indefinite period of time, and thus take over the power (from the legislature) to legislate through the powers conferred on him under Article 213.
The issue in the case holds great constitutional law importance as the executive was taking over the power to legislate by way of re-promulgating the ordinances. This practice of the executive is a violation of the constitutional provision as every citizen has a right to be governed by laws made in accordance with the Constitution i.e., the legislature and not by-laws made by the executive.
Arguments framed
Respondents
The counsel representing the respondent argued against the writ petitions, stating that:
- The petitioners do not have the right to bring these writ petitions because it was contended that the two ordinances had already been enacted into an Act of Parliament and the third ordinance was sent as a proposal to be enacted into an Act, thus the question was merely academic in nature
- The petitioners, who are mainly outsiders, do not have a legal right to challenge the government’s practice of re-promulgating ordinances.
- The issue raised in the court is only theoretical and should not be decided upon.
- The court should not examine whether the Governor followed the necessary conditions before issuing the ordinance.
There were various arguments made by the respondents that the petitioners had no locus standi to maintain the writ petition since they were outsiders who had no legal interest in challenging the validity of the re-promulgation of the ordinances.
Petitioners
Petitioner’s side contended that as a citizen, he has the right to insist on being governed by laws that adhere to the Constitution, rather than laws made by the executive branch in violation of constitutional provisions. While he may not have the right to challenge a specific ordinance unless it directly affects him, he has the right to challenge the broader practice of Bihar repeatedly re-issuing ordinances without them being turned into laws by the legislature. It is clearly for the vindication of public interest”, and therefore, the petitioner should be allowed to maintain his writ petitions.
However, after hearing these arguments, the court decided to allow the writ petitions.
Supreme Court’s observations in Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)
The Honourable Supreme Court observed that the repetitive issuance of ordinances by the Bihar Government without seeking approval from the legislature, this practice is in violation of the constitutional framework. Further, the Court looked at judicial decisions taken in past cases to back up its decision.
They pointed out a rule from a case, K.C. Gajapati Narayana Deo & Ors. v. State of Orissa (1953), which says the judiciary should focus on what the government is actually doing, not just what it looks like they are doing. Furthermore, the Court made comparisons between the conduct of the President and the Governor in exercising ordinance powers. Despite possessing similar authority, the Court noted that the President had not engaged in the same practice of reissuing ordinances after their expiration. This observation, drawn from the case of P. Vajravelu Mudaliar v. Special Deputy Collector, Madras & Anr. (1964) underscored the irregularity and impropriety of the Governor’s actions.
Further, the court acknowledges that the power given to the Governor to issue ordinances is like an emergency power, meant for situations when the legislature is not in session and immediate action is needed to address a pressing issue. It also emphasises that while the Governor has this power, the main authority for making laws lies with the legislature, not the executive. The Governor’s power to issue ordinances is a temporary measure to address urgent situations until the legislature reconvenes. Ordinances should have a limited duration and should not be used to bypass the legislature’s lawmaking function.
Critical analysis of the judgement
All these arguments were turned down by the court as the third ordinance, though presented as a proposal to the Parliament, was still in force. The Supreme Court held that the Governor can not just make new rules arbitrarily. They can only make temporary rules for emergencies, and these rules stop being valid when the Legislature meets again.
The Court ruled that the Bihar Intermediate Education Council Ordinance, 1983, which is currently in effect, has been declared unconstitutional and. therefore, invalid. The law is not legally valid or binding because it goes against the provisions of the Constitution of India. Therefore, any actions or regulations done on the basis of this ordinance are considered legally invalid.
The court further held that the act of the Governor is unconstitutional because it exceeds the Governor’s authority as outlined in the Constitution. The court further held that the executive branch in Bihar is acting like a legislature by making laws for extended periods without complying with constitutional limits. This behaviour is seen as improper and against the constitutional framework.
The court ruled that instead of relying on ordinances for a prolonged period, the government should follow the proper legislative process by introducing Bills in the legislature to enact those provisions into law. The court also held that there must not be any Ordinance-Raj practice in the country accordingly; it’s saying that the executive should not overstep its boundaries by making laws for extended periods through ordinances and should instead work within the constitutional framework by involving the legislature in the law-making process.
The Court further emphasised the importance of the rule of law in accordance with the Constitution of India. It states that all branches of the government, such as the legislature, executive, and any other authority, must operate within the ambit of constitutional limitations. If any branch of the government, particularly the executive, engages in practices that violate these constitutional limits, any member of the public (referred to as Petitioner No. 1) would have the right to challenge such practices by filing a writ petition. Furthermore, it is highlighted that it is the constitutional duty of the Supreme Court to consider and rule on the validity of such petitions.
Issuing the ordinances is a special power confirmed by the Governor. It is meant for dealing with big problems quickly. But it shouldn’t be used for political reasons. The Governor can make temporary rules called ordinances when there’s an emergency and the regular law-making body, the legislature, is not meeting in session. Even though the legislature usually makes laws, in emergencies, the Governor can step in. However, every ordinance must be presented to the legislature, and it only lasts for six weeks after the legislature meets again unless the legislature agrees to keep it longer by enacting such an ordinance. This way, ordinances are only used when needed and for a limited time. Ordinances are only supposed to last for a short time, usually six weeks, to give the regular lawmakers a chance to make a proper law. If they don’t do it within that time, the ordinance expires. The government cannot keep reissuing the same ordinance without the legislature’s approval. When an ordinance is issued by the Governor to handle an urgent situation, it automatically expires after six weeks once the legislature meets again. If the government wants to keep those rules in place beyond that time, it must get the legislature’s approval.
Another reason that made the court adjudicate upon this issue was that the court noted that the ordinances promulgated under Article 123 had never been re-promulgated till the pendency of this suit but the Government of Bihar was keeping alive various ordinances bypassing circulars which clearly directed various officials to mechanically re-promulgate the ordinances as soon as they expire. The maximum time an ordinance was re-promulgated was 39 times.
In the end, the court ruled that the mechanical re-promulgation of the ordinances for a period of one to fourteen years without going to the legislature was a colourable exercise of power by the executive and ruled that the re-promulgation of ordinances was unconstitutional. It would be wrong for the Governor to ignore the legislature and keep reissuing the same ordinance because it would give them too much power and it violates the provisions of the Constitution, especially the power of the Governor as per Article 213. Regarding the role of the court, they cannot question whether the Governor felt satisfied when issuing an ordinance. But, in this case, the issue is not about the Governor’s satisfaction. It’s about whether the Governor has the power to keep re-issuing the same ordinance without getting the legislature involved. The answer is no, they cannot do that.
The judgement delivered by Bhagwati, J falls apart when the court says that there may be times when the parliament cannot deal with the promulgated ordinances because of a shortage of time. to
Problems attached to the judgement
Of course, this was a faulty judgment for several reasons. One of the reasons, to begin with, is that the court did not go into the question of what would happen to the effects that have been made by these failed ordinances. Reconciling this case and T. Venkata Reddy’s case would essentially mean that the effects of such failed ordinances that are re-promulgated would remain as it is, though the ordinances re-promulgated have been declared unconstitutional in nature. Moreover, there is a false distinction in the scope of judicial reviewability between this case and T. Venkata Reddy’s case. Another counter effect was due to the problematic exceptions provided in the case as after the judgement, the re-promulgation of ordinances rather increased; 53 ordinances were re-promulgated between 1991 and 1993 and some were promulgated at least five times.
This case was subsequently also cited in the case of Krishna Kumar v. State of Bihar (2017) which dealt with various issues related to promulgation of ordinances and re-promulgation was also something that the court commented upon. The court in this case slightly differed from the view held in the case of D.C. Wadhwa by stating that re-promulgation of an ordinance is an unconstitutional practice; the ordinance should be mandatorily laid down in the parliament for the necessary debate to take place and not doing so would be an abuse of constitutional process. The difference was merely of the exceptions given in the D.C. Wadhwa case but it is suggestive from Justice Lokur’s opinion that the court did not explicitly overrule the D.C. Wadhwa case but rather only differed from it. So Krishna Kumar’s case seems to have left the answer to the practice of re-promulgation incomplete.
Could the judgement be tackled in a better way
To answer the question of how D.C Wadhwa’s judgement could be tackled in a better way we must look at the intention of the members of the constitutional drafting assembly by exploring the arguments given at the time of drafting and incorporating such articles in the constitution, of what they wanted us to perceive of these articles. After which we can look at some other jurisdictions where such a power, as envisaged in Articles 123 and 213 is present and how these countries look at the exercise of re-promulgation of ordinances
Constituent Assembly Debates
The ordinance-making power of the President and the governor are a legacy of the colonial past and the British decided to do away with this power to legislate but the drafting committee incorporated them as articles 123 and 213 in the Constitution. They were adopted from Sections 42 and 43 of the Government of India Act, 1935 which vested parallel legislative power in the Governor-General of India. These articles were severely criticised in the Constituent Assembly debates as they did not go well with the elected and the representative polity.
The Constitution provides that an ordinance must be placed before the legislature within six weeks of its reassembly but the maximum duration of enforcement of such an ordinance would be about seven and a half months. The duration of an ordinance was highly criticised in the debates like H.V. Kamath felt that six weeks from the date of the reassembly was too long and was worried that a President inclined to dictatorship might take undue advantage of the articles. H.N. Kunzu also wanted something similar, instead of six weeks he advocated for four weeks. However, the most articulate voice against the ordinance was from K.T Shah who advocated for the ordinance to not last a minute longer than such extraordinary circumstances and also suggested for the ordinance to end as soon as the Parliament reassembled. The members hardly spoke against the very idea of the ordinance-making power but the discussions were limited to the nature and scope of the ordinance and what limits they could put on an ordinance Ambedkar disapproved of all these suggestions and the articles were incorporated as they stood today. According to Shubhankar Dam, Ambedkar was too trusting in the successive presidents to come and Ambedkar believed that because these articles envisage too much power in the executive, the successors would be too mindful and extremely cautious to use these provisions of the constitution and he also trusted that these provisions would be used only in the state of grave emergency and the executive would not let the ordinance to be in effect for an unduly long period of time. Also, the constituent assembly rejected the idea of a substantive limit on the ordinance-making power.
What could have been done
Firstly the exceptions given by Bhagwati J were not required if the court is itself calling the re-promulgation practice unconstitutional. The court rather than saying that the session might be too short for the legislators to deal with the ordinance could have instead suggested increasing the duration of the session to deal with the ordinance promulgated because the power or promulgation is contingent upon an emergent situation arising. If the legislators are not dealing with that emergent situation, this would mean that either the legislators are not competent to deal with such a problem or the problem in itself was not so emergent and could have waited for the next session to reconvene.
The second thing that the court must have ensured is that no ordinance holding substantial similarity to an already expired or lapsed ordinance, must also not be promulgated. This becomes necessary looking at the number of years and number of times an ordinance has been re-promulgated. To explain with an example, let’s suppose that the state comes up with an ordinance penalising some criminal activity for a maximum of 14 years and it does not propose such an ordinance in front of the parliament to be enacted into an act rather after it has lapsed the state promulgates a new ordinance which penalises the same activity for 12 years.
Looking at the two the state could easily argue that the two ordinances are different as the duration of punishment has been reduced so it isn’t re-promulgation of the lapsed ordinance but considering that the activity penalised by the ordinance is the same, the ordinance must be perceived as a re-promulgated one. The court also fails to comment upon what would happen to the effects created by such ordinances. Considering the fact that the re-promulgated ordinance has been declared as unconstitutional the court must have ruled that the effect of the ordinance shall be void ab initio in case it is withdrawn, or lapses.
Suggestions
As suggested by the arguments given above, the main point of friction in these debates was the time period for which the ordinance would remain in effect. The intention to shorten the time period after the reassembly of the Parliament shows that the drafters didn’t want the people to be governed by the laws made by the executive which would be violative of the constitutional provisions for long. It is important to note that there was no debate about the re-promulgation of the ordinance which is evident as the process of re-promulgation is doing nothing but buying more time to the legislature to deal with the emergent situation.
But the question becomes more complex in terms that, if the situation arose was really emergent that the legislators could not have waited for the next session of the state assembly or Parliament to begin, wouldn’t the first order of business of the session be dealing with the situation and trying to enact the promulgated ordinance into an Act of Parliament because promulgating an ordinance is just a temporary solution to the situation arisen as it still has not become an Act of the Parliament.
A country like Brazil also has such a provision present in their constitution where the executive can promulgate ordinances and the constitution also allows the executive to re-promulgate the ordinance once after it lapses; after the ordinance lapses the second time the ordinance would automatically be converted into the law as it is. The only thing different in terms of the construction of the article in Brazil is that it has certain restrictions on this power where the executive cannot formulate any ordinance. As established in the above paragraph the intent of the members of the drafting committee was not to narrow the ambit of the ordinance-making power, going with Brazil’s model wouldn’t be feasible as the ambit of such power with the executive in India is too wide.
Conclusion
The ordinance-making power has been severely criticised by many and people like Rajeev Dhawan describe this power as creating legislation by cheating democracy; continuing such practice of re-promulgation is even a bigger fraud as it is a continuation of a practice (ordinance-making) that does not go well with the elected and representative polity as envisaged in our constitution. Thus, the practice should have been stopped by the court in D.C Wadhwa’s case itself or the Supreme Court must have overruled the case in Krishna Kumar’s judgement.
Frequently Asked Questions (FAQs)
What legal principle was primarily challenged in the Dr. D.C. Wadhwa case?
The primary legal challenge in Dr. D.C. Wadhwa’s case was against the practice of “ordinance raj” where the executive, represented by the Governor, repetitively issued the same ordinances without the approval of the legislature by circumventing the democratic process.
Can the executive still issue ordinances after this case?
Yes, the executive (President or Governor) still retains the power to issue ordinances under certain circumstances when immediate action is necessary and the legislature is not in session. However, this power must be used sparingly and cannot be a substitute for the regular legislative process, as affirmed by the Supreme Court in this case.
What does the term ‘locus standi’ mean in the context of this case?
In the context of the Dr. D.C. Wadhwa case, ‘locus standi’ refers to the right of an individual to bring action in court. The case reinforces the concept that individuals can challenge the constitutionality of ordinances not only when they are personally affected but also when they are acting in the public interest to uphold constitutional values and governance principles.
Reference
- https://indraprasthalawreview.in/wp-content/uploads/2021/09/GGSIPU_USLLS_ILR_2020_V1-I2-05-Dr_Shilpi_Sharma.pdf
- https://blog.ipleaders.in/separation-of-powers-and-its-relevance/#Introduction
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