Re-promulgation of ordinance a “fraud on the Constitution”, rules Supreme Court

The re-promulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, especially when the government persistently avoids the placing the ordinances before the legislature. This was one of the findings of a seven-judge bench of the Supreme Court of India..The Constitution bench, by a majority of 6:1, held that re-promulgation was impermissible under the constitutional scheme. The majority judgment was delivered by Justices Bobde, AK Goel, UU Lalit, DY Chandrachud and L Nageswara Rao. Chief Justice Thakur delivered a separate concurring judgment, while Justice Madan B Lokur dissented..The seminal question that arose in the case was whether seven successive re-promulgations of the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 suffered from any illegality or constitutional impropriety. The Patna High Court had dismissed the writ petition filed by the appellants noting that the repeated re-promulgation of the ordinances was unconstitutional. The High Court had, however, protected the appellants against any recovery of salaries already paid to them..The appeal filed in Supreme Court was initially heard by a two-Judge Bench comprising Sujata V. Manohar and D.P. Wadhwa, JJ. who differed in their opinions resulting in a reference of the appeal to a bench of three-Judges. The matter finally came to be heard by a seven- judge bench..The majority verdict, written by Justice Chandrachud, held that.. “re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and governors”..The verdict also noted,.“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. Open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through lawmaking.”.The apex court also ruled that the satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review adding that,.“The court in the exercise of its power of judicial review will not determine the sufficiency or adequacy of the material. The court will scrutinise whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review in other words would enquire into whether there was no satisfaction at all.”.It also upheld the notion that the interference of the Court would be merited in a case involving a fraud on power or an abuse of power..CJI Thakur agreed with J Chandrachud’s opinion 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.”.He also opined that “the nature of power invoked for issuing ordinances does not admit of creation of enduring rights in favour of those affected by such ordinances.”.The sole dissenting judge, Justice M B Lokur, differed in this aspect. He took the view that,.“There could be exigencies requiring the re-promulgation 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.”.Regarding the rights and liabilities that have arisen under an ordinance, the Court held that the same must be determined as a matter of construction..“The appropriate test to be applied is the test of public interest and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief.”.Some of the important conclusions in the majority judgment are as follows:.(i) The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative in character. The power is conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action;.(ii) 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 (i) be laid before the legislature; and (ii) 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;.…... (iv) The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority;.…..(vi) The 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);.(vii) 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;.(viii) Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa;.(xii) The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief; and.(xiii) The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles..Read the full judgment below.