Judgement of the day - DC Wadhwa Vs State of Bihar

By Akshay Sharma

Citation - 1987 AIR579

Issue:

Whether the governor can re-promulgate ordinances for an indefinite period of time ?

Judgement :

As per Article 213 of Indian Constitution which confers power on the Governor of a State to promulgate ordinances. This power of the Governor is an emergency power which is vested for taking immediate action where it becomes necessary to take any action and legislation when legislative assembly is not in session (unicameral legislature) and when legislative assembly along with legislative council both are not in session( bicameral legislature) . The chief, law making authority under the Constitution is the legislature and not the executive but it is possible that when the legislature is not in session any such situation may arise which make it essential, to take instant action and in order to safeguard public interest, the Governor is vested with the power to promulgate ordinances when the legislature is not in session. But every ordinance promulgated by the Governor in emergent situation must be placed before the legislature else it would cease to operate at the expiration of six weeks from reassembly of the legislature or if before the expiration of that period a resolution disapproving such ordinance is passed by the Legislative Assembly and agreed to by the Legislative Council.

In present case the issue is that whether the Governor has power to promulgate the same ordinance successively without bringing it before the legislature. That clearly the Governor cannot do. He cannot assume legislative powers in surplus of the strictly defined limits set out in the Constitution of India because otherwise he would be usurping a function which does not belong to him. It is important to note that so far as the President of India is concerned, he has the same power of issuing an ordinance under Article 123 as the Governor has under Article 213, there is not a single case in point in which the President has, since 1950 till today, re promulgated any ordinance after its expiry.

SC also said that such act of Governor is contrary to the constitutional system and it must be held to be improper and invalid. We expect and believe that such practice shall not be continued in the future and that whenever an ordinance is made and the Government wishes to continue the provisions of the ordinance in power after the sitting of the legislature, a bill will be brought before the legislature for enacting those provisions into an Act. There must not be ordinance Raj in the country. As a result of this Supreme Court striked down the Bihar Intermediate Education Council ordinance, 1985 which was in operation and declared it as unconstitutional and void.

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