DR. D. C. WADHWA & ORS.
V.
STATE OF BIHAR & ORS.
AIR 1987, 579 ; 1987 SCR ( 1 ) 798
CASE NO. WRIT PETETION Nos. 412-15 of 1984
COURT Supreme Court of India
BENCH Chief Justice P.N. Bhagwati, Justice Misra
Rangnath, Justice G.L. Oza, Justice M.M. Dutt,
Justice K.N. Singh
PETITIONER DR. D.C. Wadhwa & ORS.
RESPONDENT State Of Bihar & ORS.
DATE OF JUDGEMENT DECCEMBER 20, 1986
Legal Provisions Involved Article 213 Of Indian Constitution (Power of
Governor to promulgate Ordinances during
recess of Legislature)
ABSTRACT
The case of D.C. Wadhwa v. State of Bihar brings forth a critical constitutional
concern. The case revolves around misuse of ordinance issuing power granted to governor
under Article 213 ; between the period of 1967-1981 state of Bihar used to re - promulgate
ordinances passed by governor without presenting them in front of legislature effectively
bypassing democratic process. Supreme court retierated that this power granted is to be used
onl in emergency like situations. This pivotal ruling restricts the overreach of executive
authority and strongly disapproves of procedural evasions.
DR. D. C. Wadhwa , a professor challenged this practice of re - promulgating of
ordinances by way of writ petition ; arguing that such practice violates the ethos of article 213
and is a scam on Indian constitution . The court held that re- promuglation without legislative
scrutiny was unconstitutional. It reaffirmed the principle of supremacy of power , legislative
supremacy. The court also asserted that anyone can challenge any act of state which is
unconstitutional in nature and violates its provisions even if they are not directly affected by
such an act of state.
Facts Of the Case
ARTICLE 213: - If at any time, except when the Legislative Assembly of a State is in
session, or where there is a Legislative 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. 1
State of Bihar during the period of 1967 and 1981 adopted a practice of
repromulgating ordinances passed by governor without them being replaced by legislative
acts. Such ordinances are to have a limited life span i.e. 6 months after legislature is
reinstated into session but by way of re-promulgation these ordinances were kept alive for as
many as 14 years, this bypassed the legislative process which empowered the executive to
take over the role of making laws which originally vests in the legislature.
This case challenged three different such ordinances issued by Bihar Governor: -
Bihar Forest Produce (Regulation of Trade) Third Ordinance 1983
The Bihar Intermediate Education Council Third Ordinance 1983
The Bihar Brick Supply (Control) Third Ordinance 19832
Issue To Be Decided
Can the Governor go on re-promulgating ordinances from time to time without getting
them replaced by acts passed by legislature?
Does the repeated re-issuance of ordinances by the Governor contravene the
foundational principles of the Indian Constitution?
Arguments
Petitioner
1
India Const. art. 213, https://indiankanoon.org/doc/860592/
2
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 (India), https://indiankanoon.org/doc/504006/
Petitioner no. 1 is a professor of Economics in Gokhale Institute of Politics
and Economics, Pune, and is interested in protecting and preserving constitutional
functionality of country’s administration. petitioner no. 2, 3, 4 are directly affected by
said ordinances 1, 2 and 3 respectively.
The petitioners argued that Article 213 of the constitution allows governor to
promulgate ordinances in emergency / urgent / exceptional cases / situations when
legislature is not in session, and thus re-promulgation of such ordinances by way of
fraud on due process is a misuse/ abuse of power, and such bypassing undermines the
spirit of democracy.
The petitioners argued that general public has a right to be governed by laws
made by their elected representatives and not by executive.
The petitioners emphasized that ordinances are temporary measures taken in
situations which require immediate attention and should not be stretched for years.
Article 213 also states that the ordinance passed by governor should lapse within 06
weeks of legislature being re-assembled.
Petitioners in their argument also stated that an ordinance can at maximum
have seven and half month of life (as Article 174 states that legislature shall meet
twice a year ensuring that not more than 06 months pass between 02 sessions) unless
replaced by a legislature act.
Respondent
Respondent’s council opposed the said writ petition citing that the petitioners
have no locus standi to maintain the said writ petition, in view of the fact that two of the
ordinances (no. 1 and 22) have already lapsed and have been legislated into acts, with regard
to the third ordinance, it had already been introduced before the Assembly.
The council also contended that the petitioners could not challenge the re-
promulgation of the ordinances, as they had no legal interest or locus standi regarding the
validity of the practice.
They said that the question raised is academic in nature and can’t be decided
by courts. Counsel also said that court can’t examine whether the governor had valid reasons
to issue an ordinance under Article 213 when deciding if the ordinance is legal.
The government, in its defense, stood by the assertion that delay in passing
legislation or necessity to continue certain measures at times necessitated re-promulgation. It
was contended that administrative convenience and public interest demanded continuance of
ordinances when legislative sanction was awaited or was delayed.
Held
The judgment delivered by Chief Justice P.N. Bhagwati adjudicated the
following:
The third ordinance was struck down with immediate effect and declared
unconstitutional and void. The judges, while doing so, stated that the Governor
cannot assume any legislative function beyond the limits set by the
Constitution.
The government, in future, must exercise its powers within constitutional
limitations. Any practice that violates these constitutional limits can be
challenged by any member of the public by way of a writ petition, and must be
adjudicated upon by the courts of India as a matter of constitutional or legal
duty.
The Supreme Court of India held that the question raised in the writ petition
was not merely academic, as one of the impugned ordinances was still in
effect. The Court emphasized that the issue involved was of significant
constitutional importance, warranting judicial scrutiny.
The Court emphasized that the power granted to the Governor under Article
213 is to be used only in emergency situations that require urgent action when
the legislature is not in session.
Court also reiterated that primary law-making authority in state is legislature
and public can't be governed by short term laws made, for the purpose of
urgent or special situation, by executive.
The supreme court while explaining Article 213 said: - Article 213 grants
governor to promulgate ordinances in situations which require urgent attention
which can't be deferred for another time, when legislature is not in session.
This power is granted so that the steps which are required to be taken are taken
and public is not left at mercy of inaction. Ordinances such passed by
governor are for a limited period of time; these ordinances are to be presented
before legislature which either has to be enacted into an act by legislature or if
the nod is not given by the legislature such promulgated ordinances Should
cease to operate after expiration of 06 weeks from re assembly of legislature
The executive can't bypass the law-making authority of legislature only to
serve its political ends. The government can't without enacting an ordinance
into an act repromulgate it.
The Court noted: "A constitutional authority cannot do indirectly what it is
not permitted to do directly."3 This remark was directed at the practice of
repeatedly repromulgating ordinances, which the Court viewed as a deliberate
attempt by the executive to usurp legislative functions.
3
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 (India), https://indiankanoon.org/doc/504006/.
The Supreme Court ordered the State of Bihar to compensate Petitioner No. 1
with Rs. 10,000 as and by way of cost of writ petition.
Conclusion
The case of D. C. Wadhwa V. State of Bihar (1982) is a landmark judgement and acts
as a precedent in safeguarding constitutional governance and upholding principles of
democratic accountability.
This case revolved around the years long practice of re-promulgation of ordinances adopted
by Bihar executive over a large period of time without presenting them at the state assembly’s
floor. DR. Wadhwa, an economics professor at the Gokhale Institute of Politics and
Economics in Pune, conducted in-depth research and revealed the state government's
consistent pattern of ordinance re-promulgation. He filed this writ petition in public interest
asserting that this practice is a fraud on constitutional process and violates the ethos of
constitution.
The court in its judgement strongly expressed its disapproval the misuse of ordinance making
power granted to state governor under article 213. it held that ordinances are meant to be
temporary measures, to be exercised only when state legislature is not in session, and must be
laid before the legislature when it reassembles. According to Article 213 (2) (a) an ordinance
if not approved by state legislature after it reassembles must cease to operate after a period of
06 weeks is completed. supreme court limited an ordinance’s maximum life at seven and a
half months at most by logic of Article 174 of Indian Constitution unless it is enacted into an
act by legislature.
The judgment firmly held that repeatedly re-promulgating ordinances without presenting
them before the Legislature amounts to a constitutional fraud. It bypasses the legislative
process undermining representative democracy and concentrating law making power at
whims of executive. The authority vested in the Governor to issue ordinances is limited in
nature and can be examined by the judiciary such power granted comes with a requisite pre-
condition of an urgent or emergency like situation.
The court also adjudicated that any member of public who in public interest challenges an act
of state which is unconstitutional in nature has a locus standi in court of law even if the
member is not directly affected by such act of state.
The court re-affirmed the principle of separation of power among different organs of
government asserting that a thing which is prohibited in one manner cannot be achieved by
another manner. supreme court also re-in forced the judiciary’s power to check on acts of
other organs of government. Role of Judiciary as a guardian of Constitution was also upheld.
the judgement serves as a warning against erosion of democratic institutions and processes
through the use of procedural shortcuts. By discouraging the shortcuts used by executive by
way of re-promulgating ordinances, the court established a precedent to limit executive
overreach. This decision highlights the importance of safeguarding legislative authority and
preserving the core values of representative democracy, ensuring that law-making remains
firmly within the legislature’s domain.
