Constitutional Law

Dr. D.C. Wadhwa v. State of Bihar

AIR 1987 SC 579; (1987) 1 SCC 378

Facts

Dr. D.C. Wadhwa researched the Bihar Government’s practice of repeatedly re-promulgating Ordinances.
Under Article 213, an Ordinance ordinarily ceases to operate six weeks after the State Legislature reassembles unless it is enacted into law.
Instead of placing the measures before the Legislature and obtaining approval, Bihar repeatedly:
allowed Ordinances to approach expiry;
prorogued the legislative session; and
issued substantially identical Ordinances again.
Some measures remained continuously effective for several years through successive re-promulgation.
Internal government circulars routinely instructed departments to prepare replacement Ordinances before the previous ones expired.
Dr. Wadhwa challenged this practice as a deliberate attempt to bypass the Legislature and govern through temporary executive legislation.

Whether repeated re-promulgation of Ordinances without placing them before the Legislature was constitutionally valid.
Whether the Governor’s Ordinance power could be used as a substitute for ordinary legislation.
Whether the practice amounted to a fraud on the Constitution.
Whether a public-spirited academic had standing to challenge the practice.

Article 213 is an emergency law-making power intended to meet circumstances requiring immediate action when the Legislature is not in session.
The Governor’s satisfaction is constitutionally exercised on the aid and advice of the Council of Ministers.
An Ordinance is temporary and must be subjected to legislative control.
It must cease six weeks after reassembly unless:
the Legislature enacts it; or
it is earlier withdrawn or disapproved.
Re-promulgation cannot ordinarily be used to continue a measure indefinitely.
The executive cannot assume the primary law-making function entrusted to the Legislature.
Systematic circumvention of constitutional limits constitutes a fraud on the Constitution.
A member of the public has standing to challenge a continuing and organised constitutional violation.

The Court found that re-promulgation in Bihar was not occasional or based upon exceptional urgency.
It had become a regular administrative system.
Departments were instructed in advance to replace expiring Ordinances rather than obtain legislative enactment.
This converted Article 213 from an emergency power into a parallel source of permanent law.
The Constitution requires the executive to face the elected Legislature once it reassembles.
The Legislature may:
approve the policy;
amend it;
reject it; or
hold the Government politically accountable.
Re-promulgation denied the Legislature each of these roles.
The Court rejected the idea that the executive could keep a measure alive merely because it considered the policy desirable.
Desirability is for the Legislature once normal legislative functioning resumes.
Re-promulgation might be understandable in a genuinely exceptional situation—for example, where a Bill could not be completed because of unavoidable legislative circumstances.
It could not become a routine governmental method.
The Court also accepted Dr. Wadhwa’s standing.
The case concerned institutional compliance with the Constitution, not merely an individual private dispute.
The rule of law required judicial intervention where the executive systematically operated outside constitutional boundaries.

The Supreme Court declared Bihar’s repeated re-promulgation practice unconstitutional.
It was a fraud on the Constitution and a subversion of democratic legislative procedure.
The executive could not use Article 213 to avoid placing measures before the elected Legislature.