| Equivalent Citation | 1987 AIR 579 , 1987 SCR (1) 798 , 1987 SCC (1) 378 , JT 1987 (1) 70 , 1986 SCALE (2) 1174 |
| Date Of Judgement | 20 December 1986 |
| Court | Supreme Court |
| Case Type | Civil Appeal |
| Petitioner | Dr . D.C. Wadhwa & ORS |
| Respondent | State Of Bihar |
| Bench | Bhagwati , P.N. (CJ) , Misra Rangnath , Oza , G.L. (J) , Dutt , M.M.(J) , Singh , K.N. (J) |
| Referred | Powers of the governor , Article 123 , 213 |
Facts
The petitioner filed the writ petition in the court challenging the exercise of repromulgation of ordinances by the governor of state of Bihar . They challenged 3 ordinances : (1) Bihar Forest Produce 1983 , (2) The Bihar Intermediate Education Council 1983 , (3) The Bihar Bricks Supply 1983 as the ordinances challenged the process of repromulgation from time to time .
Under article 213 , the governor has the power of issuing an ordinance similar to the power of the president of issuing the ordinance under 123 . The power given to the governor to issue ordinances is the time of emergency and necessary action is to be taken by the governor when the 2 houses are not in session .
A bill shall be brought before the legislature for enacting the provisions of the ordinances into an act or shall come to an end at the expiration of 6 weeks from the date of rendering the legislature . If the provisions of the ordinance are continued in force , 6 weeks time should be sufficient for the legislature to pass the act , otherwise it would come to an end.
The government of Bihar promulgated 256 ordinances between 1967 & 1968 and they were kept alive for periods from 1-14 years by repromulgation many times . A constitutional authority cannot do indirectly what is not permitted to do directly . Rule of law forms the core of the constitution and the exercise of the power of the state should be within the constitutional limitations .
The court struck down the ordinance as unconstitutional and limits the powers of the governor . The court directed the state of Bihar to pay the petitioner a sum of Rs.10000 for his extensive research .
ISSUES OF THE CASE
Whether the governor can go on repromulgating ordinances for an indefinite period of time and take over the power of the legislature to legislate through the powers vested under article 213 ?
CONTENTIONS OF THE PETITIONER
The petitioner filed the writ petition as he was interested in the preservation of the constitutional functioning of administration in the country . He was a professor of economics in Gokhale Institute Of Politics & Economics , Pune who carried out detailed and keen research on the subject of repromulgation of ordinances by the governor of Bihar . The petitioner was prevented from selling his forest produce to any other purchaser other than mentioned in the ordinance and his right to dispose off the forest land was affected . Therefore , he challenged the constitutional validity of the ordinance .
CONTENTIONS OF THE RESPONDENT
The respondent contended that the petitioner had no right to maintain the writ petitions in the court , as out of the 3 ordinances , 2 of them had already lapsed . They also contended that petitioners are not authorised to challenge as they are outsiders who have no legal interest to challenge the validity of the court . The respondent also contended that the writ petition filed against The Bihar Intermediate Education Council third ordinance is entirely academic in nature and should not be interceded by the court . This ordinance has already been introduced in the parliament in the form of a legislative proposal .
JUDGEMENT OF THE CASE
The court struck down the Bihar Intermediate Education Council Ordinance as unconstitutional and void . It held that the governor cannot assume legislative function by crossing the limits laid down by the constitution . Repeated repromulgation of ordinances is opposing to the constitutional scheme and it must be held invalid .
It stated that power of the state whether legislative or executive should be within the limits of the constitution . The power given to the governor to issue ordinances should be exercised only when there is some sort of emergency and when the two houses of the state legislature are not in session and the governor is given power to take immediate action .
The executive in Bihar has taken over the role of the legislature in making laws not for a limited time but for years . As it was contrary to the constitutional scheme , it was hoped and trusted that such practice shall not be continued in the future and whenever an ordinance is made and the government wishes to continue the provisions of the ordinance in force even after assembling the legislature , a bill shall be brought before the legislature for enacting those provisions into an act .
Every ordinance issued by the governor must be placed before the legislature and it would come to an end at the expiration of six weeks . It must necessarily have a limited life . The power should not be misused to serve the political ends . The petitioner has done extensive and in-depth research and brought this practice of repromulgation of ordinance of governor of Bihar to the notice of the court . Therefore , the court directed that the state of Bihar shall pay to the petitioner a sum of ten thousand rupees ( Rs.10000) as and by way of cost of writ petitions .
REFERENCES
Written by JIYA MONGIA ( MAHARAJA AGRASEN INSITUTE OF MANAGEMENT STUDIES ), an intern under legal vidhiya.
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