BHAGWATI, P.N. (CJ), MISRA RANGNATH, OZA, G.L. (J), DUTT, M.M. (J),
SINGH, K.N. (J)
The constitutional provisions enshrined under Articles 123 and 213 of the Indian Constitution deals with the ordinance making power of the executive. Article 123 of the Indian Constitution states that the president of the country has the potential to promulgate an ordinance only when each of the houses of parliament aren’t presently in session and when an emergency state of affairs exists. Such power of the president to promulgate an ordinance has the identical force and legal result as that of enactment of the parliament.
Further, Article 213 talks concerning the potentiality of a state governor to promulgate an ordinance in 3 situations: when the state legislative assembly isn’t in session or wherever are two house in the state legislature, aren’t in session, and when an unprecedent and emergency state of affairs exists among the country. Such ordinance publicized by the governor of a state will have identical result and force as that of enactment of the state legislature and should be ordered before the 2 houses of the legislature and it to work once, the six weeks had ended from the reconstruction of each of the houses. In essence, this exception and extraordinary power are given to the executive on promulgating ordinances shall not be used as a substitute for the law making power of the parliament of the country or the legislature of the state.
The promulgating and re-promulgating of the ordinances by the Bihar Government for an indefinite amount of time while not examining the necessity of the provisions of the Ordinance at that amount of time is challenged before the Supreme court in the form of four writ petitions. The Constitutionally validity of 3 different ordinances in particular which were passed by the Governor of Bihar have been in question in the fore-mentioned case. The ordinances which are challenged include:
(i) Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983;
(ii) The Bihar Intermediate Education Council Third Ordinance, 1983;
(iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983.
These ordinances where challenged by four petitioners. A professor of Economics for the Gokhale institute of Politics and Economics, Pune is Petitioner No. 1. He has conducted deep analysis in the field of constitutional functioning which specifically enclosed the promulgation and re-promulgation of the ordinances that has been tracked within the state of Bihar. He is deeply curious in the functioning of the administrative system and is purely against the destruction of the constitutional mechanism due to allotment of unreasonable power to the executive. An resident of the village Anigara within the district of Ranchi who
produces and distributes forest produce is Petitioner No. 2. Owing to the clauses mentioned within the Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983 the absolute authority of the vendor of the forest produce to choose the cost and amount to be oversubscribed has been restricted. The State has condemned the whole management over the disposal of forest produce which has adversely affected the fundamental rights of the petitioner, questioning the constitutional validity of the ordinance. An intermediate student of A.N. College, Patna has adversely restricted his rights or has the potential to do so which led to the difficult of constitutional validity of the Bihar Intermediate Education Council Third Ordinance. The provisions of the Bihar Brick Supply (Control) Third Ordinance has led to the manufacture, distribution and functioning of the brick trade to be completely regulated by the State itself. This has led to the Petitioner No. 4 who is a brick producing operator to file a writ petition challenging the constitutional validity of the ordinance.
Whether the re-promulgation of ordinances by the Governor of the State of Bihar amounted to misuse of the potentiality bestowed to the governor by article 213 of the Indian Constitution?
CONTENTIONS OF THE PETITIONERS-
The State was embarked with a full monopoly over the regulation of buying and merchandising the forest manufacture through the supply beneath Clause (5) of the Bihar Forest manufacture (Regulation of Trade) Third Ordinance, 1983 that’s against the policies of the constitutional mandate.
The price at that the forest manufacture purchased and sold-out is alone set by the regime or by the other forest officer who is appointed by the state government and regime and is guilty of the manufacture. This is often expressed beneath Clause (7) of the ordinance under Clause (7) of the ordinance.
The price at which the bricks are factory-made, transported, disposed, and consumed is deliberated by the state government, and the state is asserted because the sole businessman beneath Bihar Brick Supply (Control) Third Ordinance.
The observe of re-promulgation of ordinances by the state government is completed with a deliberate intention to hold aback the ordinances alive throughout the non-functioning of the parliamentary sessions and the practice has been continuing for an indefinite amount of time.
CONTENTIONS OF THE RESPONDENTS-
The provisions of the Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983 and the Bihar Bricks Supply (Control) Third Ordinance, 1983 have nonchurchgoing and are gone along by the parliament to enact them as legislation that renders the petitioners while not a locus standi to file a writ petition in the supreme court. The third ordinance which is the Bihar Intermediate Education Council Third Ordinance has already been introduced in the parliament in the style of a legislative proposal.
Petitioner No. 1 doesn’t have any legal interest to challenge this present case, considering he is an outsider who isn’t entitled to question the re-promulgation of ordinances in the form of a writ petition.
The respondent contended that the writ petition filed against the Bihar Intermediate Education Council, Third Ordinance is only educational in nature and will not be interfered with by the court of law.
The condition during which such an ordinance was introduced must persist for an ordinance to stay valid even following its re-promulgation by the Governor under Article 213 of the Indian Constitution.
The Bihar Government was of the opinion that it’s not necessary for the ordinance to be passed by the state legislature and that the executive authority is enough to promulgate the ordinances whenever necessary. This can be clearly against the principles of the constitution of India. On that note, the Supreme Court in the current case has ruled that the re-promulgation practice of the government to represent the legitimate exercise of legislative power can’t be justified.
The Supreme Court struck down this irrational exercise of ordinance making power as a “subversion of the democratic process” and “colorable exercise of power”. Re-promulgation of an ordinance may be a fraud and misuse of the Constitution and a subversion of democratic method. Ordinances aren’t immune to judicial review and the Court can invalidate an ordinance if it's publicised in a very colourable method.
The power to promulgate an ought to be used solely in extraordinary emergency things and to not meet the political wants of anyone. Executive shan’t perform the function of law making assigned to the legislature.
The judgment delivered by Bhagwati, J falls apart when the court says that there may be times when the parliament cannot wear down the promulgated ordinances owing to a shortage of your time. Therefore the court gave 2 exceptions to the present decree that re-promulgation may be allowed; foremost, if the legislature cannot take it up as a result of existing legislative business; second, if the government feels that an emergent situation has emerged and repromulgation is important to wear down it.
The ordinance making power has been severely criticized by numerous like Rajeev Dhawan describe this power as building legislation by cheating democracy; continued such apply of repromulgation is even a much bigger fraud as a result it may be a continuation of a practice (ordinance making) that doesn’t go well with the elected and representative polity as envisaged in our constitution. Thus, the practice should have been stopped by the court in D.C Wadhwa’s case itself or the Supreme Court should have over-ruled the case in Krishna Kumar’s judgment.
This article is written by Vaibhavi Vora of Pravin Gandhi College Of Law, Mumbai.