Case Brief: D.C. WADHWA V. STATE OF BIHAR

                                           

CASE NAME	D.C. WADHWA V. STATE OF BIHAR
CITATION	1987 AIR 579 1987 SCR (1) 798 1987 SCC (1) 378 JT 1987 (1) 70 1986 SCALE (2)1174
COURT	SUPREME COURT OF INDIA
BENCH	BHAGWATI, P.N. (CJ), MISRA RANGNATH, OZA, G.L. (J), DUTT, M.M. (J), SINGH, K.N. (J)
DATE OF DECISION	20 December 1986

FACTS

In this case, the petitioner, Dr. D.C. Wadhwa, an economics professor in Pune, filed a Public Interest Litigation (PIL) contesting the governor’s general authority to re-promulgate several ordinances by the Bihar governor. The petitioner had done a great deal of research and written publications regarding the abuse of the governor of Bihar’s ordinance-making authority because, between 1967 and 1981, the government of Bihar issued 256 ordinances, which were then automatically re-issued everyone to fourteen years without altering their content or attempting to make them into Acts. 

The court reviewed the governor’s general authority to re-promulgate the ordinance because multiple ordinances had been done more than thirty times. The three ordinances in effect for ten to fourteen years were the challenge’s immediate target. The primary question disputed was whether the Governor, using the authority granted to him by Article 213, could automatically re-promulgate the ordinance for an unlimited amount of time, thereby assuming the legislative branch’s authority to enact laws.

ISSUES

Is it possible that the governor of the State of Bihar misused the authority granted to him by Article 213 of the Indian Constitution by promulgating ordinances again? 

ARGUMENTS

The parliament approved the nonchurchgoing provisions of the Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983, and the Bihar Bricks Supply (Control) Third Ordinance, 1983, enacting them as laws that deny the petitioners the right to file a writ petition in the Supreme Court. The Bihar Intermediate Education Council Third Ordinance, the third ordinance, has already been presented as a legislative proposal in the parliament. As an outsider with no right to challenge the re-promulgation of ordinances through a writ petition, Petitioner No. 1 lacks legal standing to challenge the current case. The respondent argued that the court will not get involved in the writ suit filed against the Bihar Intermediate Education Council, Third Ordinance, because it is solely educational in nature. According to Article 213 of the Indian Constitution, an ordinance is only valid if the circumstances surrounding its introduction remain the same, even after the Governor has re-promulgated it.

JUDGEMENT

The Bihar government believed the executive authority was sufficient to promulgate ordinances as needed, and the state legislature did not need to pass them to be implemented. This may be manifestly in violation of the Indian Constitution’s tenets. Considering this, the Supreme Court decided in the present case that the government’s practice of re-promulgating laws in an attempt to appear as a lawful use of its legislative authority cannot be justified. 

This unreasonable use of ordinance-making authority was overturned by the Supreme Court on the grounds that it was a “colorable exercise of power” and a “subversion of the democratic process.” Re-promulgation of an ordinance could be considered a subversion of democratic process, fraud, and misuse of the Constitution. Ordinances are subject to judicial review, and if they are widely publicized in an objectionable way, the court may declare them to be invalid. 

 Promulgating an ought should only be done in cases of extreme emergency and never be done to appease a particular political interest. The executive branch cannot carry out the legislative branch’s duty of passing laws. 

 The court’s ruling that the parliament may occasionally be unable to overturn enacted ordinances due to a lack of time undermines Bhagwati, J.’s decision. As a result, the court granted two exceptions to the current decree, allowing for re-promulgation: first, if the legislature is unable to take up the matter due to ongoing legislative business; and second, if the government determines that re-promulgation is necessary to address an emerging situation. 

ANALYSIS

Many people have sharply criticized the ordinance-making power, with Rajeev Dhawan characterizing it as “building legislation by cheating democracy.” Promulgation of such an ordinance is even more fraudulent, and it may be a continuation of a practice that is incompatible with the elected and representative polity envisioned in our constitution. Therefore, the Supreme Court should have overturned the case in Krishna Kumar’s ruling or the court in D.C. Wadhwa’s case itself should have ended the practice.