D. C. Wadhwa V. State of Bihar summary

D. C. WADHWA Vs. STATE OF BIHAR

SUPREME COURT OF INDIA

1987

CASE ON REPROMULGATION OF SAME ORDINANCE UNDER ARTICLE 213 OF THE CONSTITUTION

Facts of the case : 

Petitioner filed the petition under article 32 of the constitution challenging the validity of repeated promulgation of the same ordinance by the government of Bihar without replacing it with act of the legislature

Contention of the parties : 

Petitioner : It was argued that the governor and the government of Bihar repeatedly promulgated the same ordinance multiple times without replacing it with the act of the legislature and thus is ultra vires of the constitution under article 213 making the ordinance invalid. 

Respondent : State of Bihar argued that the petition cannot be sustained in this honourable court as the court cannot decide upon the existence of the situation prerequisite for exercising the power under article 213 of the constitution by the governor of Bihar. 

JUDGEMENT : 

The court in very first instance held that petitioner has the sufficient right to maintain the petition, as being a citizen he has the right to be governed by the rules made in consensus with the Constitution and are not ultra vires to the Constitution. 
The court observed that legislative and executive have thier functions clearly defined in the Constitution and no one take over the function of any other organ except in the emergency situations as prescribed by the Constitution itself. Article 213 of the constitution grants the right to governor, similar to the right granted to the president under article 123, of passing ordinances to deal with emergency situation when the respective house or both house, as the case may be, are not in session. The expiry of such ordinances are six weeks from the date of sitting of assemblies or till the legislature pass the act replacing it or may pass the motion disapproving it, whichever may be earlier. The court clearly stated that repromulgating the ordinances multiple times implies the overtaking of legislative function by the executive over a long period of time which is unconstitutional. Something which cannot be directly done as per the Constitution can not be done indirectly as well. Thus the court strike down Bihar Intermediate Education Council Ordinance 1985 as unconstitutional and void.



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