LexDR. D.C. WADHWA & ORS. versus STATE OF BIHAR & ORS.
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A B DR. D.C. WADHWA & ORS. I'. STATE OF BIHAR & ORS. DECEMBER :w, 1986 [P.N. BHAGWATI CJ, RANGANATH MISRA, G.L. OZA, M.M. DUTT AND K.N. SINGH, JJ.] Constitution of India, 1950, Article 213-Scope of-Power of the Governor to repromulgate Ordinances from time to time without getting them replaced by Acts of Legislature-Scope of-Whether a colourable C exercise of power, repugnant to the constitutional scheme. The State of Bihar adopted a practice of repromulgating the ordi· nances on a massive scale from time to time without their provisions being enacted into acts of the legislature. The practice was that, after D the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were repromulgated containing substan- tially the same provisions almost in a routine manner. The petitioners challenged the validity of this practice and in particular they challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (I) Bihar Forest Produce (Regulation of E Trade) Third Ordinance 1983; (ii) The Bibar Intermediate Education Council Third Ordinance 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance 1983, since these Ordinances also suffered the same process of repromulgation from time to time. F Petitioner No. 1, a Professor of Economics in Gokhale Institute of Politics and Economics, Pone carried out thorough and detailed re- search in the matter of repromulgation of Ordinances by the Governor of Bihar from time to time and filed the present writ P"tition as he was interested in the preservation and promotion of constitutional function- ing of the administration in the country. Petitioner Nos. 2, 3 and 4 were affected by the provisions of the aforesaid Ordinances mentioned at serial no. (i) (ii) and (iii) respectively. The provisions of two ou¢ of the G aforesaid three Ordinances were enacted into acts of the legislature during the pendency of the writ petitions and the third Ordinance, namely, the Bihar Intermediate Education Council Third Ordinance, 1983 is still in operation though a bill incorporating the provision of this Ordinance is pending consideration before the State Legislature and it H bas been referred to the Sel«t Committee. 798 - r_ i 'l--· I \: ·~ .. - ·t -I DR. D.C. WADHWA v. STATE OF BIHAR 799 Counsel for the Respondent-State opposed the writ petitions con- A tending: (i) that the petitioners have no locus standi to maintain the writ petitions, since out of the three Ordinances, two of them had already lapsed and their provisions were enacted into Acts of the Legislature and so far as the third Ordinance, namely, the Bihar Intermediate Education Council Third Ordinance 1983 is concerned, a legislative proposal has already been introduced for enacting its provisions into an B Act; (ii) that the petitioners are not entitled to challenge the practice of repromulgating ordinances from time to time since they are mainly outsiders who have no legal interest to challenge the validity of this practice; (iii) that the question raised before the Court is academic in nature and should not be adjudicated upon by it; and (iv) that the Court is not entitled to examine whether the conditions precedent for the .C exercise of power of the Governor under Art. 213 existed or not for the purpose of determining the validity of an Ordinance. Allowing the writ petitions, HELD: (!) The Bihar intermediate Education Council Ordi- D nance 1983 which is still in operation is struck down as unconstitutional and void. The Governor cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a functioo which does not belong to him. [818F ·GI ln the instant case, the executive in Bihar has almost taken over E the role of the Legislature in making laws not for a limited period but for years together in disregard of the constitutional limitations. This is clearly contrary to the constautional scheme and it must be held to be improper and invalid. It is hoped and trusted 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 F in force after the assembling of the Legislature, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not
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