Re-promulgation of ordinances fraud on Constitution: SC

The judgment, authored by Justice D Y Chandrachud, held that ordinances issued under Articles 123 or 213 have the same force and effect as a law enacted by the legislature

Written by Utkarsh Anand | New Delhi | Published:January 3, 2017 2:37 am
repromulgation of ordinances, ordinances, supreme court, constitutional ordinances, india news The court said re-promulgation of ordinances is constitutionally impermissible and is a “subversion of democratic legislative processes” since it represents an effort to overreach the legislative body.

ASSERTING THAT “the ordinance making power is not a parallel source of legislation”, the Supreme Court on Monday ruled that “re-promulgation of ordinances is a fraud on the Constitution” and maintained that ordinances are not immune from judicial scrutiny when the “power has been exercised to secure an oblique purpose.”

By a 5:2 majority judgment, the top court held that placing the ordinance before the legislature is a mandatory Constitutional obligation and failure to do so would amount to “serious constitutional infraction and abuse of the constitutional process”.

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The judgment, authored by Justice D Y Chandrachud, held that ordinances issued under Articles 123 or 213 have the same force and effect as a law enacted by the legislature, but it must be laid before the legislature and will cease to operate six weeks after the legislature has reassembled, or even earlier if a resolution disapproving it is passed.

Laying an ordinance before Parliament or the state legislature, the court said, is mandatory because the legislature has to determine the need for, validity of and expediency to promulgate an ordinance; whether the ordinance ought to be approved or disapproved; and whether an Act incorporating the provisions of the ordinance should be enacted with or without amendments.

The majority judgment, delivered by Justices S A Bobde, Adarsh K Goel, Uday U Lalit, D Y Chandrachud and L Nageswara Rao, further clarified that a government cannot rely on the argument that an ordinance shall not cease to exist before expiry of six months, as laid down in the Constitution.

“A government which has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the ordinance which it has failed to place at all is valid till it ceases to operate. An edifice of rights and obligations cannot be built in a constitutional order on acts which amount to a fraud on power. This will be destructive of the rule of law,” said the court, adding that an ordinance must be placed before the legislature.

The court said re-promulgation of ordinances is constitutionally impermissible and is a “subversion of democratic legislative processes” since it represents an effort to overreach the legislative body.

“Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred on the President and the Governors. 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,” it held.

“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.

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” and that the test is whether the “satisfaction” is based on some relevant material.

“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 noted.

The interference of the court, the judgment stated, can arise in a case involving a fraud on power or an abuse of power. “This essentially involves a situation where the power has been exercised to secure an oblique purpose…where the court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all,” it added.

The court was ruling on a bunch of petitions on the validity of ordinances issued and re-promulgated in Bihar between 1989-91, that have been referred to the larger bench.

Chief Justice of India T S Thakur and Justice Madan B Lokur differed from the majority view on the aspect of whether it was mandatory to lay an ordinance before the legislature or that re-promulgation of an ordinance amounted to a fraud on the Constitution. While Justice Lokur dissented with the majority view, the CJI said it was not necessary to rule upon these legal questions.

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    Hatshepsut
    Jan 2, 2017 at 11:56 pm
    So basically SC has ruled that all ordinances ped by BJP and Congress are fraud on consution. What is the compensation to the people for those frauds? Demonetization?
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      ak dev
      Jan 3, 2017 at 1:51 am
      Judges selecting judges and judiciary's unaccountablity is also a fraud on consution.
      Reply
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        Anil Bharali
        Jan 3, 2017 at 2:42 am
        Because both BJP and Congress are basically pro colonial political parties will not hesitate to dismantle "Democratic Republic " Indian consution back into British Wesminister type of Democracy where colonial type of loot is permissible and what Congress and BJP desire in favor of their crony capitalists and family run politics.
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          Purna Varma
          Jan 2, 2017 at 11:34 pm
          The people of India wish that the Judiciary clear the million cases in the backlog. We wish Judiciary STFU on the administrative issues on the government of the day. Perhaps it is high time the President interferes and set the issues on hand right before it goes out of hand.
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            AntiWahhabi
            Jan 3, 2017 at 2:07 am
            Fraud, oblique measures are new norm. Ordinance is used to ert authority by government. Well done SC to make strong statement.lt;br/gt;lt;br/gt;Democracy is slowly destro. We are heading towards dictatorship.lt;br/gt;lt;br/gt;Hitler did exactly same thing during early days
            Reply
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              AntiWahhabi
              Jan 3, 2017 at 2:08 am
              Let the deshdrohi bhakts like you select the judges.
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                MAHESH KANDASWAMY
                Jan 2, 2017 at 10:19 pm
                MAJORITY CONCLUSION IS JUST AND RIGHT IN A DEMOCRATIC GOVERNANCE# LEGISLATORS MUST ENACT AFTER DELIBERATIONS AS TO PROS AND CONS IN A PROPOSED LEGISLATATION TO TAKE SHAPE AS AN ACT - OR ELSE ABUSE OF POWERS (ORDINANCE) TO ACHIEVE WHAT CANNOT BE ACHIEVED NORMALLY - ACHIEVED BY OTHER OBLIQUE MEANS#lt;br/gt;ANY LAW WHICH LACKS REGULARITY, LEGALITY AND PROPRIETY IS VOIDABLE ABINITIO AS NULL AND VOID#AS UNTENABLE #JAIHIND
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                  Ashok Mazumdar
                  Jan 3, 2017 at 4:33 am
                  Absolutely True Observation of SC.
                  Reply
                  1. M
                    mumbikar
                    Jan 2, 2017 at 11:18 pm
                    Good job SC, u are getting tougher and tougher everyday, keep it up
                    Reply
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                      heena
                      Jan 3, 2017 at 12:50 am
                      It shall be more prudent for the SC to clear the back log cases in courts and prevent harment of the common people. Instead they use their judicial power to back door activities of politics of the country, this is very very bad in natural justice as well as well established ethics. It is strange that the judges are party to loot and let loot policies.
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                      1. S
                        Sanjay Kulkarni
                        Jan 3, 2017 at 6:09 am
                        Collegium system is a fraud on the Consution of India.
                        Reply
                        1. S
                          syed ansar
                          Jan 3, 2017 at 2:31 am
                          when any government's policy hurts citizens then their ultimate remedy is the supreme court.....and......citizens salute the supreme court as it has time and again stood to uphold the consution and protect the rights of the citizens. ....
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                            terimaakabhosda
                            Jan 3, 2017 at 8:36 am
                            Bhakts a**ses have swollen by SC verdict as they have forgotten India is Democratic Republic...Modi habit of byping Parliament and force his dictatorship on Indians have taken a hit.....Modi will now play communal card to save his image...which again SC has disapproved of.....only thing now left is to create India wide riots...which is under discussion between Amit Shah, all sadhus and sadhvis, pressutes including Arnab, Sudhir Chaudhry, Rajat Sharma....Murders and rapes would be instigated by Sanghis and Muslims would be implicated which would be twisted and highlighted by these pressutes and would support riots in National Interest...
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                              Citizen
                              Jan 3, 2017 at 2:26 am
                              OK it is not consutional but if the members are bent up on behaving like street guys what is the solution??? Ordinance provision is given so that urgent matters/laws that need intimidate action if not taken by the rulers it may adversely affect the citizens so is it not time if the ordinance is brought before the house if any one disturbs he or she should disqualified for 15/20 years or if the ordinance is ped by the directly elected house it should be a law so that real wish of the people would reflect. Jaihind
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