D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378

Bench

A 5-Judge Bench of the Supreme Court:

1. P.N. Bhagwati, C.J.
2. Ranganath Misra, J.
3. G.L. Oza, J.
4. M.M. Dutt, J.
5. K.N. Singh, J.

Facts

• Dr. D.C. Wadhwa, a professor and researcher, conducted a detailed study on the use of ordinances in Bihar and found that the State Government had been repromulgating ordinances repeatedly without converting them into laws.
• The Governor of Bihar had issued 256 ordinances between 1967 and 1981, many of which were repromulgated multiple times for periods ranging from one to 14 years.
• This practice allowed the executive to bypass the legislature, as ordinances were meant for temporary emergency situations when the legislature was not in session.
• Dr. Wadhwa filed a writ petition under Article 32 of the Constitution, arguing that repeated repromulgation of ordinances was a fraud on the Constitution and violated the rule of law.

Issues

1. Can the Governor repromulgate ordinances repeatedly without presenting them to the legislature?
2. Does such repromulgation violate the constitutional scheme of separation of powers and the rule of law?
3. Can the executive use the ordinance-making power to bypass the legislative process?

Ratio Decidendi (Legal Principle)

• Ordinances are not a substitute for legislation: The Court held that Article 213 (Governor’s ordinance-making power) is meant for emergencies, and ordinances must be replaced by proper legislation.
• Repromulgation is unconstitutional: The practice of repromulgating ordinances without placing them before the legislature is a fraud on the Constitution.
• Legislature’s supremacy must be upheld: The executive cannot bypass the legislature by continuously repromulgating ordinances.
• Ordinances have a limited life: An ordinance must cease to operate after six weeks from the reassembly of the legislature, as per Article 213(2).

Observations

• The Governor’s power to promulgate ordinances is an emergency power and should not be misused to avoid legislative scrutiny.
• The rule of law and democratic governance require that laws be made by elected representatives, not through executive action.
• The State of Bihar had created an “ordinance raj”, where governance was being conducted through repeated ordinances instead of laws passed by the legislature.

Decision

• The Supreme Court struck down the practice of repromulgating ordinances as unconstitutional.
• The Court held that the Governor does not have the power to repeatedly repromulgate ordinances without placing them before the legislature.
• Ordinances that were repeatedly repromulgated without legislative approval were declared void.

Important Terms

1. Article 213 (Governor’s Ordinance-Making Power)

• Allows the Governor to issue ordinances when the State Legislature is not in session.
• The ordinance must be laid before the legislature and ceases to be effective after six weeks unless approved.

2. Fraud on the Constitution

• The Supreme Court ruled that repeatedly repromulgating ordinances to bypass the legislature amounts to a fraud on the Constitution.

3. Rule of Law

• The principle that all actions of the government must be based on laws enacted by the legislature.
• The executive cannot govern through ordinances instead of proper laws.

4. Separation of Powers

• The legislature makes laws, the executive implements them, and the judiciary interprets them.
• The Bihar Government violated this principle by using ordinances instead of passing laws.