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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