India

Repromulgation of ordinances is a ‘fraud’ on the Constitution: SC

New Delhi: Repromulgation of ordinances is a “fraud” on the Constitution and a sub-version of democratic legislative processes, especially when the government persistently avoids the placing the ordinances before the legislature, the Supreme Court today ruled.

A seven-judge Constitution bench, by a majority of 6:1, held that repromulgation 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.”

“Repromulgation 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 repromulgation 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, repromulgation 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 repromulgating 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 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 subserves 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 repromulgation and constituted a fraud on Constitution, while Justice D P Wadhwa had held that it was only repromulgation after the first ordinance that was ultra vires.