Re-promulgation of an ordinance a fraud on Constitution - SC


The Supreme Court on January 2, 2017 said re-promulgation of an ordinance was a fraud on the Constitution and the satisfaction of the President or the Governor to promulgate an ordinance was not immune from judicial review.
A seven-judge Constitution bench, by a majority of 6:1, held that re-promulgation is constitutionally "impermissible" and "defeats constitutional scheme" under which a limited power to frame ordinances has been conferred upon the President and the Governors.
Justice D Y Chandrachud, who wrote the majority verdict on behalf of Justices S A Bobde, A K Goel, U U Lalit and L Nageswara Rao, said, "The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process." 

"Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes," Justice Chandrachud said. 

Chief Justice T S Thakur, who wrote a concurrent but separate judgement, said that "repeated re-promulgation of the ordinances was a fraud on the Constitution especially when the government of the time appears to have persistently avoided the placement of the ordinances before the legislature". 

The lone dissenting judge, Justice M B Lokur, was of the opinion that the repromulgation of an ordinance by the Governor of a state is not per se a fraud on the Constitution. 

"There could be exigencies requiring the repromulgation of an ordinance. However, re-promulgation of an ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that 'circumstances exist which render it necessary for him to take immediate action' for promulgating or re-promulgating an ordinance," he said. 

The verdict came on a plea against a series of ordinances issued by the Bihar Governor between 1989 and 1992 regarding the taking over of 429 private Sanskrit schools by the state. 

"We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power," the verdict penned by Justice Chandrachud said.

The majority verdict said, "Re-promulgation of ordinances  is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law making authority in a parliamentary democracy. 

"Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors. The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law givers under the Constitution," it said. 

It also referred to Article 213 of the Constitution that describes it as power of the Governor to promulgate ordinances during recess of legislature. 

"The authority which is conferred upon the Governor to promulgate ordinances is conditioned by two requirements. The first is that an ordinance can be promulgated only when the state legislature is not in session. When the legislature is in session, a law can only be enacted by it and not by the Governor issuing an ordinance. 

"The second requirement is that the Governor, before issuing an ordinance has to be satisfied of the existence of circumstances rendering it necessary to take immediate action," the majority verdict said. 

It also observed that "power conferred upon the Governor is not in the nature of and does not make the Governor a parallel law making authority. The legislature is the constitutional repository of the power to enact law". 

"The legislative power of the Governor is intended by the Constitution not to be a substitute for the law-making authority of duly elected legislatures. The same position would hold in relation to the ordinance-making power of the President," it said. 

Justice Chandrachud further said that, "An ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must be laid before the legislature; and it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an ordinance may also be withdrawn.
The majority verdict also said that consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to "legislative control". 

"The President or, as the case may be, the Governor acts on the aid and advice of the Council of Ministers which owes collective responsibility to the legislature," it said. 

It said that requirement of laying an ordinance before Parliament or the state legislature is a "mandatory constitutional obligation cast upon the government". 

"Laying of the ordinance before the legislature is mandatory because the legislature has to determine: (a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether the ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments)," it said. 

It also noted that laying of an ordinance before the state legislature sub-serves the purpose of legislative control over the ordinance-making power and "legislation by ordinances is not an ordinary source of law making but is intended to meet extra-ordinary situations of an emergent nature, during the recess of the legislature". 

In a 1998 split verdict on the issue by a division bench of the apex court, Justice Sujata Manohar had held that all ordinances were part of a chain of promulgation and re-promulgation and constituted a fraud on Constitution, while Justice D P Wadhwa had held that it was only re-promulgation after the first ordinance that was ultra vires.

Significance of the Judgment

The importance of this case can scarcely be understated, as the Court’s judgment will have far-reaching effects upon the balance of power between the Parliament and the Executive. This case is also best understood in the context of a global concern with how political power is being incrementally transferred from the legislature to the executive, across jurisdictions. This concern was voiced more than forty years ago in Arthur Schlessinger’s famous The Imperial Presidency, and is presently an issue of burning controversy in the U.K. concerning Brexit. The Court’s judgment, therefore, is crucial to the future of the separation of powers under the Indian Constitution.

Monday, 02nd Jan 2017, 11:50:59 AM

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