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PETITIONER: DR. D.C. WADHWA & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT20/12/1986

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) MISRA RANGNATH OZA, G.L. (J) DUTT, M.M. (J) SINGH, K.N. (J)

CITATION:  1987 AIR  579            1987 SCR  (1) 798  1987 SCC  (1) 378        JT 1987 (1)    70  1986 SCALE  (2)1174

ACT:     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 Legis- lature--Scope  of--Whether a colourable exercise  of  power, repugnant to the constitutional scheme.

HEADNOTE:     The State of Bihar adopted a practice of  repromulgating the ordinances on a massive scale from time to time  without their provisions being enacted into acts of the legislature. The practice was that, after the session of the State Legis- lature  was prorogued, the same ordinances which had  ceased to  operate were repromulgated containing substantially  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 differ- ent ordinances issued by the Governor of Bihar, namely,  (1) Bihar  Forest Produce (Regulation of Trade) Third  Ordinance 1983;  (ii) The Bihar 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.     Petitioner  No. 1, a Professor of Economics  in  Gokhale Institute of Politics and Economics, Pune carried out  thor- ough  and detailed research in the matter of  repromulgation of Ordinances by the Governor of Bihar from time to time and filed the present writ petition as he was interested in  the preservation and promotion of constitutional functioning  of the administration in the country. Petitioner Nos. 2, 3  and 4  were  affected by the provisions of the  aforesaid  Ordi- nances  mentioned at serial no. (i) (ii) and  (iii)  respec- tively.  The  provisions of two out of the  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 incorpo- rating the provision of this Ordinance is pending considera-

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tion  before the State Legislature and it has been  referred to the Select Committee. 799      Counsel  for  the  Respondent-State  opposed  the  writ petitions contending: (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  enact- ing  its provisions into an 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 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:  (1)  The Bihar  Intermediate  Education  Council Ordinance 1983 which is still in operation is struck down as unconstitutional and void. The Governor cannot assume legis- lative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurp- ing a function which does not belong to him. [818F-G]      In the instant case, the executive in Bihar has  almost taken  over 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 constitutional 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 in force after the assembling of the Legislature, a Bill will be brought before the  Legisla- ture  for enacting those provisions into an Act. There  must not be Ordinance--Raj in the country. [818D-F]      2(1)  The rule of law constitutes the core of the  Con- stitution of India and it is the essence of the rule of  law that  the exercise of the power by the State whether  it  be the  Legislature  or the Executive or  any  other  authority should  be within the constitutional limitations and if  any practice  is adopted by the Executive which is  in  flagrant and systematic violation of its constitutional  limitations, petitioner No. 1 as a member of the public would have suffi- cient  interest to challenge such practice by filing a  writ petition and it would be the constitutional duty 800 of  the  Supreme Court to entertain the  writ  petition  and adjudicate upon the validity of such practice. [805C-E]     2(2)  The  Bihar Intermediate  Education  Council  Third Ordinance 1983 is still in force and it cannot therefore  be said to be academic to examine the challenge to its  consti- tutional  validity. Moreover, the question raised  in  these writ petitions is of highest constitutional importance as it does  affect  the  power of the  Governor  to  re-promulgate Ordinances  and it is in public interest that the  Executive should  know  what are the limitations on the power  of  the Governor in the matter of re-promulgation of ordinances.  If this question is not decided on merits, the correct position in regard to the constitutional limitations on the power  of the  Governor to re-promulgate ordinances will remain  unde-

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termined. [805F-H]     S.P. Gupta & Ors. v. Union of India & Ors., [1982] 2 SCR 365, referred to.     3(1) The power conferred on the Governor to issue  Ordi- nances  is  in  the nature of an emergency  power  which  is vested  in  the Governor for taking immediate  action  where such action may become necessary at a time when the Legisla- ture is not in session. [815C-D]     3(2) The primary law making authority under the  Consti- tution  is the Legislature and not the Executive but  it  is possible  that when the Legislature is not in session,  cir- cumstances  may  arise  which render it  necessary  to  take immediate  action  and in such a case in order  that  public interest  may not suffer by reason of the inability  of  the Legislature to make law to deal with the emergent situation, the  Governor is vested with the power to  promulgate  ordi- nances. But every ordinance promulgated by the Governor must be  placed  before  the Legislature and it  would  cease  to operate  at the expiration of six weeks from the  reassembly of  the  Legislature  or if before the  expiration  of  that period a resolution disapproving it is passed by the  Legis- lative Assembly and agreed to by the legislative Council, if any.  The object of this provision is that since  the  power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in session, an Ordinance promulgated by the Governor to deal with situation which requires immediate action and which cannot wait  until the legislature reassembles, must necessarily have a limited life. [815D-G]     3(3) The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be 801 allowed  to  be "perverted to serve political ends".  It  is contrary  to all democratic norms that the Executive  should have the power to make a law, but in order to meet an  emer- gent situation, this power is conferred on the Governor  and an  Ordinance  issued by the Governor in  exercise  of  this power  must, therefore, of necessity be limited in point  of time.  That is why it is provided that the  Ordinance  shall cease  to  operate on the expiration of six weeks  from  the date  of  assembling of the  Legislature.  The  Constitution makers expected that if the provisions of the Ordinance  are to  be continued in force, six weeks time should  be  suffi- cient for the Legislature to pass the necessary Act. But  if within this time the Legislature does not pass such an  Act, the Ordinance must come to an end. [816A-C]     3(4)  The Executive cannot by taking resort to an  emer- gency  power exercisable by it only when the Legislature  is not  in  session, take over the law-making function  of  the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for  then the people would be governed not by the laws  made by  the legislature as provided in the Constitution  but  by laws  made by the Executive. The Government  cannot  by-pass the  Legislature and without enacting the provisions of  the Ordinance  in  an Act of the Legislature,  repromulgate  the ordinance as soon as the Legislature is prorogued. [816E-F]     3(5)  A  constitutional authority cannot  do  indirectly what  it  is  not permitted to do directly. If  there  is  a constitutional   provision  inhibiting  the   constitutional authority  from doing an act, such provision cannot  be  al- lowed  to  be defeated by adoption of any  subterfuge.  That would  be clearly a fraud on the  constitutional  provision. [816H; 817A-B]

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   4. When the constitutional provision stipulates that  an Ordinance  promulgated by the Governor to meet  an  emergent situation  shall cease to be in operation at the  expiration of six weeks from the reassembly of the Legislature and  the Government  if it wishes the provisions of the Ordinance  to be continued in force beyond the period of six weeks has  to go  before the Legislature which is the  constitutional  au- thority  entrusted  with the law making function,  it  would most  certainly  be a colourable exercise of power  for  the Government to ignore the Legislature and to repromulgate the Ordinance  and  thus to continue to regulate  the  life  and liberty of the citizens through Ordinance made by the Execu- tive.  Such a stratagem would be repugnant to the  constitu- tional  scheme, as it would enable the Executive  to  trans- gress  its  constitutional limitation in the matter  of  law making in an emergent situation and to covertly and indi- 802 rectly  arrogate  to itself the law making function  of  the Legislation.  [ 817D-G]     5. The court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the  satisfaction  of  the Governor. The  only  question  is whether  the  Governor has power to  repromulgate  the  same Ordinance successively without bringing it before the Legis- lature. That clearly the Governor cannot do. [818B-C]     Bharat Singh v. Empire, AIR 1931 PC 111; Rajaram Bahadur Kamlesh Narain Singh v. Commissioner of Income Tax, AIR 1943 PC  153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC  59 and  R.C. Cooper v. Union of India, [1970] 3 SCR 530,  inap- plicable.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition Nos. 412-15 of 1984 (Under Article 32 of the Constitution of India. )     Soli J. Sorabji, J.B. Dadachanji, Ravinder Narain,  T.N. Ansari, Joel Pares, S. Sukumaran and Dr. Chandrachud for the Petitioners.     L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Ms. S. Relan for the Respondents. The Judgment of the Court was delivered by     BHAGWATI,  CJ. These petitions under Article 32  of  the Constitution raise a short question of great  constitutional importance  relating  to  the power of  the  Governor  under Article 213 of the Constitution to re-promulgate  ordinances from  time to time without getting them replaced by Acts  of the  Legislature.  The question is, can the Governor  go  on re-promulgating ordinances for an indefinite period of  time and  thus take over to himself the power of the  Legislature to  legislate  though that power is conferred on  him  under Article  213  only for the purpose of enabling him  to  take immediate action at a time when the legislative assembly  of the State is not in session or when in a case where there is a legislative council in the State, both Houses of  Legisla- ture are not in session. The facts giving rise to these writ petitions  are disturbing and we may briefly state  them  as follows:     These writ petitions have been filed by four petitioners challenging  the  validity of the practice of the  State  of Bihar in promulgating   803 and  re-promulgating  ordinances on a massive scale  and  in particular they have challenged the constitutional  validity

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of  three  different ordinances issued by  the  Governor  of Bihar,  namely,  (i) Bihar Forest  Produce  (Regulations  of Trade)  Third Ordinance, 1983; (ii) The  Bihar  Intermediate Education Council Third Ordinance, 1983; and (iii) The Bihar Bricks  Supply (Control) Third Ordinance,  1983.  Petitioner No.  1 is a professor of economics is the Gokhale  Institute of Politics and Economics, Pune and he has spent a number of years  in studying the constitutional functioning of  Indian politics.  He is deeply interested in the  preservation  and promotion  of constitutional functioning of the  administra- tion  in the country. He has made a deep and profound  study of  the  practice which is being followed in  the  State  of Bihar  of promulgating and re-promulgating  ordinances  from time to time without enacting them into Acts of the Legisla- ture.  Petitioner  No. 2 is an occupancy Raiyat  of  village Anigara, Kunti Police Station in the district of Ranchi.  He grows  forest produce in his Raiyat land. Clause (5) of  the Bihar Forest Produce (Regulation of Trade) Third  Ordinance, 1983  imposes  restriction on the sale of  specified  forest produce  and it further created State monopoly for sale  and purchase  of such forest produce. Clause (7) of  this  ordi- nance  conferred  power on the State Government to  fix  the price at which the specified forest produce may be purchased by it or by any authorised forest officer or agent from  the growers  of such forest produce. The effect of these  provi- sions  in  the Bihar Forest Produce (Regulations  of  Trade) Third Ordinance was that petitioner No. 2 was prevented from selling his forest produce to any purchaser other than those mentioned  in the ordinance and his right to dispose of  the forest  produce was adversely affected by  these  provisions and he was therefore interested in challenging the constitu- tional  validity  of this ordinance. Petitioner No. 3  is  a student  studying  in Intermediate (Science) Class  in  A.N. College, Patna. He was affected  by  the  Bihar   Intermedi- ate  Education Council Third Ordinance. It is not  necessary to refer to the provisions of this ordinance since it  could not be seriously disputed on behalf of the respondents  that the provisions of this ordinance affected, curtailed  and/or regulated the rights of petitioner No. 3 or at least had the potential  of doing so and petitioner No. 3 therefore  chal- lenged the constitutional validity of this ordinance.  Simi- larly  petitioner  No. 4 was aggrieved by  the  Bihar  Brick Supply (Control) Third Ordinance because he is the  proprie- tor  of  South Bihar Agency, Patna,  a  brick  manufacturing concern  operating under a licence issued by the Mining  and the  Industry Department of the Government of Bihar and  the provisions of this ordinance empowering the State Government to  control  and  regulate  the  manufacture,  distribution, transport, disposal and consumption of 804 bricks, as also the price at which the bricks may be  bought or sold affected petitioner No. 4 and he accordingly  joined the writ petition and challenged the constitutional validity of this ordinance.     It  was contended on behalf of the respondents that  the petitioners had no locus standi to maintain this writ  peti- tion since out of the three ordinances challenged on  behalf of  the petitioners, two of them, namely, Bihar Forest  Pro- duce  (Regulations of Trade) Third Ordinance, 1983  and  the Bihar  Bricks  Supply (Control) Third  Ordinance,  1983  had already lapsed and their provisions were enacted in Acts  of the  Legislature and so far as the third ordinance,  namely, The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting  its provisions into an Act. The  respondents  also

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contended that the petitioners are not entitled to challenge the practice prevalent in the State of Bihar of repromulgat- ing  ordinances  from time to time since  they  were  merely outsiders who had no legal interest to challenge the validi- ty of this practice. We do not think this preliminary objec- tion raised on behalf of the respondents is well-founded. It is  undoubtedly true that the provisions of two out  of  the three  ordinances  challenged in these writ  petitions  were enacted into Acts of the Legislature but that happened  only during the pendency of these writ petitions and at the  date when  these writ petitions were filed, these two  ordinances were  very  much in operation and affected the  interest  of petitioners  Nos. 2 and 4 respectively. Moreover, the  third ordinance, namely. The Bihar Intermediate Education  Council Third Ordinance is still in operation though a bill incorpo- rating the provisions of this ordinance is pending consider- ation before the State Legislature and it has been  referred to  a Select Committee and the right of petitioner No. 3  to pursue  a particular course of study is vitally affected  by the  provisions contained in that ordinance.  Besides  peti- tioner  No.  1 is a Professor of Political  Science  and  is deeply  interested in ensuring proper implementation of  the constitutional  provisions.  He has sufficient  interest  to maintain a petition under Article 32 even as a member of the public because it is a right of every citizen to insist that he  should be governed by laws made in accordance  with  the Constitution and not laws made by the executive in violation of the constitutional provisions. Of course, if any particu- lar  ordinance was being challenged by petitioner No.  1  he may  not have the locus standi to challenge it simply  as  a member of the public unless some legal right or interest  of his  is violated or threatened by such ordinance,  but  here what  petitioner  No. 1 has a member of the public  is  com- plaining  of  is a practice which is being followed  by  the State of Bihar of re-promulgating the ordinances 805 from  time  to time without their provisions  being  enacted into Acts of the Legislature. It is clearly for  vindication of  public  interest that petitioner No. 1 has  filed  these writ petitions and he must therefore be held to be  entitled to  maintain  his writ petitions. In S.P. Gupta  &  Ors.  v. Union of India & Ors., [1982] 2 SCR 365 one of us (Bhagwati, J. as he then was) observed:-- "Any  member  of the public having sufficient  interest  can maintain  an action for judicial redress for  public  injury arising from breach of public duty or from violation of some provision  of the Constitution or the law and seek  enforce- ment  of such public duty and observance of  such  constitu- tional or legal provision." The rule of law constitutes the core of our Constitution and it  is the essence of the rule of law that the  exercise  of the power by the State whether it be the Legislature or  the Executive  or any other authority should be within the  con- stitutional  limitations and if any practice is  adopted  by the  Executive which is inflagrant and systematic  violation of  its  constitutional limitations, petitioner No. 1  as  a member  of  the  public would have  sufficient  interest  to challenge  such  practice by filing a writ petition  and  it would be the constitutional duty of this Court to  entertain the  writ petition and adjudicate upon the validity of  such practice.  We must therefore reject the preliminary  conten- tion  raised  on behalf of the respondents  challenging  the locus of the petitioners to maintain these writ petitions.     The  respondents  then contended that in any  event  the question raised before the Court in these writ petitions was

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academic in nature and should not be adjudicated upon by the Court.  But this contention urged on behalf of the  respond- ents  is  also without force since  the  Bihar  Intermediate Education  Council Third Ordinance is still in force and  it cannot  therefore  be  said to be academic  to  examine  the challenge  to  its  constitutional  validity.  Moreover  the question  raised in these writ petitions is of highest  con- stitutional importance as it does the power of the  Governor to  re-promulgate  ordinances and it is in  public  interest that  the Executive should know what are the limitations  on the  power of the Governor in the matter of  re-promulgation of  ordinances. If this question is not decided  on  merits, the correct position in regard to the constitutional limita- tions  on the power of the Governor to  re-promulgate  ordi- nances  will  remain undetermined. We are of the  view  that this  question  has great public importance and it  must  be decided  by us on merits in order to afford guidance to  the Governor in the exercise of 806 his power to repromulgate ordinances from time to time.     We  shall now proceed to state how the Governor  in  the State of Bihar has been indulging in the practice of  repro- mulgating  the  ordinances from time to time so as  to  keep them alive for an indefinite period of time. Petitioner  No. 1  carried out thorough and detailed research in the  matter of  repromulgation  of ordinances by the Governor  of  Bihar from  time to time and the result of this research was  com- piled  by him and published in a book entitled  "Repromulga- tion  of  Ordinances: Fraud on the Constitution  of  India". Some  of  the  relevant extracts from this  book  have  been annexed to the writ petition indicating the number of  ordi- nances repromulgated repeatedly by the Governor of Bihar. It is clear on a perusal of these extracts that the Governor of Bihar  promulgated 256 ordinances between 1967 and 1981  and all  these  ordinances were kept alive for  periods  ranging between one to 14 years by repromulgation from time to time. Out  of these 256 ordinances 69 were  repromulgated  several times and kept alive with the prior permission of the Presi- dent of India. The following table would indicate the  cate- gorisation  of  these 256 ordinances by reference  to  their life groups:--         Life-Groups               Number of         (Years)                   Ordinances        Upto 1                     59        1--2                       51        2--3                       45        3--4                       21        4--5                       21        5--6                       21        6--7                       11        7--8                        8        8--9                        4        9-- 10                      4        10--11                      6        11--12                      4        12--13                   ----        13-- 14                     1                                 ----                    Total         256 The  enormity of the situation would appear to be  startling if  we  have  a look at some of the  ordinances  which  were allowed to continue in force 807 by  the methodology of repromulgation. The  following  table indicates  in the case of each ordinance, the title  of  the

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ordinance,  the  date of first promulgation  and  the  total period  for  which the ordinance was continued in  force  by adopting the stratagem of repromulgation: s.   Name of the Ordinance    Date on which      Life of the No.                           First              Ordinance                               Promulgated 1             2                   3          4                                            Year Months  Days i. The Bihar Sugarcane        13.11.1968    13    11     19    (Regulation of Supply    and Purchase) Ordinance    1968 (Ordinance No. 3 of    1968) ii. The Bihar Panchayati      14.8.1970     11     4    18     Raj (Amending and     Validating) Ordinance     1970 (Ordinance No. 3     of 1970) iii. The Bihar Hindu Religious  5.9. 1970   11     3    26       Trusts (Amendment)       Ordinance, 1970 (Ordi-       nance No. 5 of 1970) iv. The State Aid to         10.9.1970      11     3    21     Industries (Amendment)     Ordinance, 1970 (Ordi-     nance No. 8 of 1970) v.   The Bihar Bihar  Khadi  and  17.9.1970  11     3    14      Village Industries      (Amendment) Ordinance,      1970 (Ordinance No. 9      of 1970) vi.  The Bihar Soil and Water   10.2.1971   10    10    19      Conservation and Land      Development Ordinance,      1971 (Ordinance No. 16      of 1971) vii.  The Bihar Panchayati      15.5.1971    10     7    17       Raj (Amendment) Ordi-       nance, 1971 (Ordinance       No. 54 of 1971) 808 viii.  The Bihar Municipal   20.5.1971        10     7    12        (Third Amendment)        Ordinance, 1971 (Ordi-        nance No. 57 of 1971) ix.  The Patna Municipal    22.5.1971         10     7    10      Corporation (Amendment)      Ordinance, 1971      (Ordinance No. 58 of 1971) x.   The Bihar State Housing  14.9.1971       10     3    17      Board Ordinance, 1971      (Ordinance No. 101 of 1971) xi.  The Bihar Co-operative   7.10.1971       10     2    25      Societies (Second Amend-      ment) Ordinance, 1971      (Ordinance No. 103 of 1971) xii.  The Bihar Agricultural  14.12.1972       9    10    16       Produce Markets (Amend-       ment) Ordinance, 1972       (Ordinance No. 6 of 1972) xiii.  The Bihar Medical Educa-  14.5.1972     9     7    18        tional Institutions        (Regulation and Control)        Ordinance, 1972        (Ordinance No. 69 of 1972)

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xiv.  The Rajendra Agricultural   15.1.1973    8    11    17       University (Amendment)       Ordinance, 1973       (Ordinance No. 2 of 1973) xv.  The Bihar Panchayati        22.2.1973     8    10     7      Raj (Validating) Ordinance      1973 (Ordinance No. 5 of      1973) xvi.  The Bihar Panchayat       22.2.1973      8    10     7       Samitis and Zilla Parishads       (Amending and Validating       Ordinance, 1973       (Ordinance No. 6 of 1973) xvii.  The Bihar Khadi and   1.10.1973         8     3     0        Village Industries        (Amendment) Ordinance,        1973 (Ordinance No. 122        of 1973) 809 xviii.  The Motor Vehicles    20.5.1971      7      8     17         (Bihar Amendment) Ordi-         nance, 1971 (Ordinance         No. 56 of 1971) xix.  The Bihar State Aid to      27.4.1977   7      8     4       Industries (Second Amend-       ment) Ordinance, 1974       (Ordinance No. 56 of 1974) xx.  The Bihar Irrigation Laws    27.8.1974   7      4     3      (Amendment)      Ordinance, 1974      (Ordinance No. 169 of 1974) xxi.  The Bihar Irrigation Field    29.8.1974  7     4     3       Channel (Amendment) Ordi-       nance 1974, (Ordinance       No. 170 of 1974) xxii.  The Bihar Soil and Water    16.9.1974   7     3    15        Conservation and Land        Development (Amendment)        Ordinance, 1974 (Ordi-        nance No. 174 of 1974-) xxiii. The Bihar Gramdan       26.2.1972       6     5    27     (Amendment) Ordinance     1972 (Ordinance No. 12     of 1972) xxiv.  The Bihar Primary Edu-     5.9.1970     6    3     26        cation (Amendment) Ordi-        nance, 1970 (Ordinance        No. 6 of 1970) xxv.  The Bihar Regional Deve-   19.9.1974     6    3     12       lopment Authority Ordi-       nance, 1974 (Ordinance       No. 175 of 1974) xxvi. The Chota Nagpur and      29.10.1974     6     2     3       Santhal Parganas Autono-       mous Development Autho-       rity (Fifth Amendment)       Ordinance, 1975 (Ordi-       nance No. 197 of 1975) xxvii. The Bihar Motor Vehicle    29.11.1975   6     1     2        Taxation (Fifth Amendment)        Ordinance, 1975 (Ordi-        nance No. 207 of 1975) 810 xxxviii. The Bihar Case (Amend-   2.12.1975    6     1     0          ment) Ordinance, 1975

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        (Ordinance No. 209 of 1975) xxix. The Bihar Public Land    5.12.1975       6     0    27       Encroachment (Amendment)       Ordinance, 1975 (Ordi-       nance No. 210 of 1975) xxx.  The Bihar Motor Vehicles   5.12.1975     6     0    27       Taxation (Sixth Amend-       ment) Ordinance; 1975       (Ordinance No. 212 of 1975) xxxi.  The Bihar Motor Vehicles     5.12.1975   6    0    27        Taxation (Seventh Amend-        ment) Ordinance, 1975        (Ordinance No. 214 of 1975) It will thus be seen that the power to promulgate ordinances was  used  by the Government of Bihar on a large  scale  and after  the session of the State Legislature  was  prorogued, the same ordinances which had ceased to operate were  repro- mulgated containing substantially the same provisions almost in a routine manner. This would be clear from the fact  that on 26th August, 1973 the Governor of Bihar repromulgated  54 ordinances  with  the same provisions and on  17th  January, 1973,  49 ordinances were repromulgated by the  Governor  of Bihar containing substantially the same provisions and again on 27th April, 1974, 7 ordinances were repromulgated and  on 29th  April,  1974,  9 ordinances  were  repromulgated  with substantially the same provisions. Then again on 23rd  July, 1974,  51 ordinances were repromulgated which  included  the self-same  ordinances which had been repromulgated  on  27th and  29th  April, 1974. On 18th March, 1979,  52  ordinances were repromulgated while on 18th August, 1979, 51 ordinances were repromulgated containing substantially the same  provi- sions. 49 ordinances were repromulgated on 28th April,  1979 and on 18th August, 1979, 51 ordinances were  repromulgated. This exercise of making mass repromulgation of ordinances on the  prorogation  of the session of  the  State  Legislature continued  unabated and on 11th August, 1980, 49  ordinances were repromulgated while on 19th January 1981, the number of ordinances  repromulgated was as high as 53.  The  following table shows how many times the same Ordinance was  rePromul- gated in order to keep its provisions in force:  811  Name of     Date of first  Last date  How many   Total  the Ordi-   promulgation   of re-pro- times      period  nance                      mulgation  re-pro-    of the                                        mulgated   life of                                                   ordinance 1                  2            3        4          5 1. The Bihar    13.1.68     12.8.81      39   about 14 years Sugarcane (Regulation of supply and Purchase) Ordinance, 1968. 2. The Bihar     14.8.70    19.1.81   35     about 12 years Panchayat Raj (Amending and Validating) 1970. 3. The Bihar       5.9.70     22.4.81  37    about 12 years Hindu Reli- gious Trusts (Amendment) Ordinance, 1970.

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4. The Bihar       10.9.70     23.4.81  34   about 12 years State Aid to Industries (Amendment) 1970. 5. The Bihar       17.9.70      19.1.81  35   about 12 years Khadi and Village Industries (Amendment) 1970. It  may be pointed out that the three ordinances  challenged in  these writ petitions also suffered the same  process  of repromulgation  from time to time. The Bihar Forest  Produce (Regulation of Trade) Third Ordinance was first  promulgated in  1977 and after its expiry, it was repromulgated  several times  without it being converted into an Act of  the  State Legislature and it continued to be in force until it was 812 placed by Bihar Act No. 12 of 1984 on 17th May, 1984. So far as the Bihar Intermediate Education Council Third  Ordinance is concerned it was initially promulgated in 1982 and  after its  expiry, it was again repromulgated by the  Governor  of Bihar  four times with the same provisions and it was  ulti- mately  allowed  to lapse on 6th June, 1985,  but  then  the Bihar  Intermediate Education Council Ordinance,  1985,  was promulgated  which contained almost the same  provisions  as those contained in the Bihar Intermediate Education  Council Third Ordinance. Similarly the Bihar Bricks Supply (Control) Third Ordinance was initially promulgated in 1979 and  after its  expiry  it was repromulgated by the Governor  of  Bihar from  time to time and continued to be in force  until  17th May, 1984 when it was replaced by Bihar Act No. 13 of  1984. Thus  the Bihar Forest Produce (Regulations of Trade)  Third Ordinance continued to be in force for a period of more than six  years, the Bihar Intermediate Education  Council  Third Ordinance  remained in force for a period of more  than  one year,  while the Bihar Bricks Supply (Control)  Third  Ordi- nance was continued in force for a period of more than  five years.     The  Government  of Bihar, it seems, made it  a  settled practice to go on repromulgating the ordinances from time to time and this was done methodologically and with a sense  of deliberateness.  Immediately at the conclusion of each  ses- sion  of the State Legislature a circular letter used to  be sent  by the Special Secretary in the Department of  Parlia- mentary  Affairs to all the Commissioners Secretaries,  Spe- cial  Secretaries, Additional Secretaries and all  heads  of departments  intimating  to  them that the  session  of  the Legislature  had been got prorogued’ and that under  Article 213  Clause  (2)(a) of the Constitution all  the  ordinances would  cease to be in force after six weeks of the  date  of reassembly of the Legislature and that they should therefore get  in touch with the Law Department and  immediate  action should  be  initiated to get "all the  concerned  ordinances repromulgated", so that all those ordinances are  positively repromulgated before the date of their expiry. This circular letter  also  used to advise the officers that  if  the  old ordinances were repromulgated in their original form without any  amendment,  the approval of the  Council  of  Ministers would  not be necessary. The petitioners placed  before  the Court  a copy of one such circular letter dated  29th  July, 1981  and it described the subject of the  communication  as "regarding repromulgation of ordinances". It would be  prof- itable  to reproduce this circular letter dated  29th  July.

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1981  as it indicates the routine manner in which the  ordi- nances were repromulgated by the Governor of Bihar: 813      "Letter No. P.A./Misc. 1040/80-872                     GOVERNMENT OF BIHAR             DEPARTMENT OF PARLIAMENTARY AFFAIRS From: Basant Kumar Dubey       Special Secretary to the Govt.   To: All Commissioners and Secretaries, All Special  Secre- taries, All Additional Secretaries, All Heads of Departments                              Patna 15--dated 29th July, 1981      Subject: Regarding re-promulgation of Ordinances. Sir,       I  am directed to say that the budget Session  of  the Legislature  (June-July 1981) has been got  prorogued  after the  completion of the business of both the houses  on  July 28, 1981.       Under the provisions of Art.  213(2)(a) of the Consti- tution  all  the Ordinances cease to be in force  after  six weeks of the date of the reassembly of the Legislature. This time  the session of the Legislative Assembly has  begun  on June 29, 1981 and that of the Legislative Council on July 1, 1981. Therefore from 1.7. 1981, six weeks, that is, 42  days would be completed on 1 1.8.1981 and if they are not  repro- mulgated before the aforesaid date, then all the  Ordinances will cease to be in force after 11.8.1981.       It  is, therefore, requested that the  Law  Department may  be contacted and immediate action be initiated  to  get all the concerned Ordinances re-promulgated so that they are definitely repromulgated before 11.8.1981.       If  the  old  ordinances are  repromulgated  in  their original  form without any amendment, then the  approval  of the Council of Ministers is not necessary. 814           This  should  be given the top-most  priority  and necessary action should be taken immediately.                                            Yours faithfully,                                      Sd/- Basant Kumar Dubey                      Special Secretary to Bihar Government." This  circular  letter clearly shows beyond doubt  that  the repromulgation of the ordinances was done on a massive scale in  a  routine manner without even caring to get  the  ordi- nances  replaced by Acts of the Legislature  or  considering whether  the circumstances existed which rendered it  neces- sary  for  the Governor to take immediate action by  way  of repromulgation  of the ordinances. The Government seemed  to proceed on the basis that it was not necessary to  introduce any legislation in the Legislature but that the law could be continued  to be made by the Government by having the  ordi- nances repromulgated by the Governor from time to time.  The question is whether this practice followed by the Government of  Bihar  could  be justified  as  representing  legitimate exercise  of power of promulgating ordinances  conferred  on the Governor under Article. 213 of the Constitution.     The  determination of this question depends on the  true interpretation  of  Article 213 which confers power  on  the Governor  of a State to promulgate ordinances. This  Article in so far as material, reads as follows: "213. (1) If at any time, except when the Legislative Assem- bly  of a State is in session, or where there is a  Legisla- tive  Council  in a State, except when both  Houses  of  the Legislature  are in session, the Governor is satisfied  that circumstances  exist  which render it necessary for  him  to take immediate action, he may promulgate such Ordinances  as the circumstances appear to him to require.

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 ........................................................ (2)  An Ordinance promulgated under this Article shall  have the  same force and effect as an Act of the  Legislature  of the State assented to by the Governor, but every such  Ordi- nance-- (a)  shall  be laid before the Legislative Assembly  of  the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the 815 expiration of six weeks from the reassembly of the  Legisla- ture,  or if before the expiration of that period a  resolu- tion  disapproving it is passed by the Legislative  Assembly and  agreed to by the Legislative Council, if any, upon  the passing  of  the resolution or, as the case may be,  on  the resolution being agreed to by the Council, and (b) may be withdrawn at any time by the Governor. Explanation--Where the Houses of the Legislature of a  State having  a Legislative Council are summoned to reassemble  on different  dates, the period of six weeks shall be  reckoned from  the  later  of these dates for the  purposes  of  this clause  ......................................." The  power conferred on the Governor to issue Ordinances  is in  the nature of an emergency power which is vested in  the Governor  for taking immediate action where such action  may become  necessary at a time when the Legislature is  not  in Session. The primary law making authority under the  Consti- tution  is the Legislature and not the Executive but  it  is possible that when the Legislature is not in Session circum- stances may arise which render it necessary to take  immedi- ate action and in such a case in order that public  interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the  Gover- nor  is vested with the power to promulgate Ordinances.  But every  Ordinance promulgated by the Governor must be  placed before the Legislature and it would cease to operate at  the expiration of six weeks from the reassembly of the  Legisla- ture or if before the expiration of that period a resolution disapproving  it is passed by the Legislative  Assembly  and agreed to by the Legislative Council, if any. The object  of this  provision  is that since the power  conferred  on  the Governor to issue Ordinances is an emergent power  exercisa- ble  when  the Legislature is not in Session,  an  Ordinance promulgated  by the Governor to deal with a situation  which requires  immediate action and which cannot wait  until  the legislature  reassembles,  must necessarily have  a  limited life.  Since Article 174 enjoins that the Legislature  shall meet  at  least  twice in a year but six  months  shall  not intervene  between its last sitting in one session  and  the date appointed for its first sitting in the next Session and an  Ordinance made by the Governor must cease to operate  at the  expiration  of  six weeks from the  reassembly  of  the Legislature,  it  is  obvious that the maximum  life  of  an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the 816 resolution  of  the Legislature before the  expiry  of  that period. The power to promulgate an Ordinance is  essentially a  power to be used to meet an extra-ordinary situation  and it  cannot  be allowed to be "perverted to  serve  political ends."  It  is  contrary to all democratic  norms  that  the Executive should have the power to make a law, but in  order to  meet an emergent situation, this power is  conferred  on the  Governor  and an Ordinance issued by  the  Governor  in exercise  of  this power must, therefore,  of  necessity  be limited  in point of time. That is why it is  provided  that

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the  Ordinance shall cease to operate on the  expiration  of six  weeks from the date of assembling of  the  Legislature. The  Constitution makers expected that if the provisions  of the Ordinance are to be continued in force, this time should be sufficient for the Legislature to pass the necessary Act. But  if within this time the Legislature does not pass  such an  Act,  the Ordinance must come to an end.  The  Executive cannot  continue  the provisions of the Ordinance  in  force without going to the Legislature. The law-making function is entrusted by the Constitution to the Legislature  consisting of  the representatives of the people and if  the  Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation  without submitting  to  the voice of the Legislature,  it  would  be nothing  short  of usurpation by the Executive of  the  law- making function of the Legislature. The Executive cannot  by taking  resort to an emergency power exercisable by it  only when  the Legislature is not in Session, take over the  law- making  function of the Legislature. That would  be  clearly subverting the democratic process which lies at the core  of our  constitutional  scheme, for then the  people  would  be governed not the laws made by the Legislature as provided in the  Constitution  but by laws made by  the  Executive.  The Government cannot by-pass the Legislature and without enact- ing  the  provisions  of the Ordinance into an  Act  of  the Legislature,  repromulgate  the  Ordinance as  soon  as  the Legislature  is prorogued. Of course, there may be a  situa- tion  where  it may not be possible for  the  Government  to introduce  and push through in the Legislature a  Bill  con- taining the same provisions as in the Ordinance, because the Legislature  may  have too much legislative  business  in  a particular Session or the time at the disposal of the Legis- lature  in  a particular Session may be short, and  in  that event, the Governor may legitimately find that it is  neces- sary to repromulgate the Ordinance. Where such is the  case, re-promulgation of the Ordinance may not be open to  attack. But otherwise, it would be a colourable exercise of power on the  part  of the Executive to continue  an  Ordinance  with substantially the same provisions beyond the period  limited by  the Constitution, by adopting the methodology of  repro- mulgation. It is settled law that a constitutional authority can- 817 not  do indirectly what it is not permitted to do  directly. If  there is a constitutional provision inhibiting the  con- stitutional  authority  from doing an  Act,  such  provision cannot be allowed to be defeated by adoption of any  subter- fuge.  That would be clearly a fraud on  the  constitutional provision.  This is precisely what was pointed out  by  Muk- harji,  J. speaking for the Court in K.C.  Gajapati  Narayan Deo & Ors. v. State of Orissa, [1954] 1 SCR 1: "In  other  words, it is the substance of the  Act  that  is material and not merely the form or outward appearance,  and if  the  subject matter in substance is something  which  is beyond the powers of that legislature to legislate upon, the form  in  which the law is. clothed would not save  it  from condemnation.  The legislature cannot violate the  constitu- tional prohibitions by employing an indirect method." So  also in P. Vajravelu Mudaliar v. Special Deputy  Collec- tor, Madras & Anr., [1965] 1 SCR 614 a Constitution Bench of this Court observed that when it is said that Legislation is a colourable one, what it means is that the Legislature  has transgressed  its legislative power in a covert or  indirect manner,  if it adopts a device to outstep the limits of  its power. When the constitutional provision stipulates that  an

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Ordinance  promulgated by the Governor to meet  an  emergent situation  shall cease to be in operation at the  expiration of six weeks from the reassembly of the Legislature and  the Government  if it wishes the provisions of the Ordinance  to be continued in force beyond the period of six weeks has  to go  before the Legislature_which is the  constitutional  au- thority  entrusted  with the law making function,  it  would most  certainly  be a colourable exercise of power  for  the Government to ignore the Legislature and to repromulgate the Ordinance  and  thus to continue to regulate  the  life  and liberty of the citizens through Ordinance made by the Execu- tive.  Such a strategem would be repugnant to the  constitu- tional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an  emergent situation and to covertly and indirectly  arro- gate  to itself the law making function of the  Legislature. Shri  Lal Narain Sinha, appearing on behalf of the State  of Bihar urged that the Court is not entitled to examine wheth- er the conditions precedent for the exercise of the power of the  Governor  under  Article 213 existed or  not,  for  the purpose  of determining the validity of an Ordinance and  in support  of  this proposition, he strongly relied  upon  the decisions  reported  in Bhagat Singh & Ors. v.  Empire,  AIR 1931  PC 111, Rajararn Bahadur Kamlesh Narain Singh v.  Com- missioner of Income Tax, AIR 1943 PC 818 153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59  and R.C.  Cooper v. Union of India, [1970] 3 SCR 530. We do  not see  how these decisions could possibly help in the  present case. They do not at all deal with the question which we are called  upon to decide here. It is true that,  according  to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the  Governor in  issuing  an Ordinance, but the question in  the  present case does not raise any controversy in regard to the  satis- faction  of the Governor. The only question is  whether  the Governor  has power to repromulgate the same Ordinance  suc- cessively  without bringing it before the Legislature.  That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the  Constitution because otherwise he would be  usurping  a function which does not belong to him. It is significant  to note  that  so far as the President of India  is  concerned, though  he has the same power of issuing an Ordinance  under Article 123 as the Governor has under Article 213, there  is not a single instance in which the President has, since 1950 till  today, repromulgated any Ordinance after  its  expiry. The  startling  facts which we have narrated  above  clearly show that the Executive in Bihar has almost taken over  the’ role  of the Legislature in making laws, not for  a  limited period, but for years together in disregard of the constitu- tional limitations. This is clearly contrary to the  consti- tutional  scheme  and  it must be held to  be  improper  and invalid.  We hope and trust 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 force after the assembling of the  Legisla- ture,  a  Bill will be brought before  the  Legislature  for enacting  those  provisions into an Act. There must  not  be Ordinance--Raj in the country.     We  must accordingly strike down the Bihar  Intermediate Education  Council Ordinance, 1983 which is still in  opera- tion as unconstitutional and void. Petitioner No. 1 has done enormous research and brought this reprehensible practice of the  Government of Bihar to the notice of the Court  and  we

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would therefore direct that the State of Bihar shall pay  to Petitioner  No. 1 a sum of Rs. 10,000 (rupees  ten  thousand only,) as and by way of cost of the writ petitions. M.L.A.                                             Petitions allowed. 819