A constitutional authority cannot do indirectly what it is not permitted to do directly. [Dr. D.C. Wadhwa & Ors v/s State Of Bihar & Ors]

Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors 

Before Supreme Court of India

Decided on: 20 December 1986

Bench: Bhagwati, P.N. (CJ), Misra Rangnath, Oza, G.L. (J), Dutt, M.M. (J), Singh, K.N. (J)

Author: P Bhagwati, Justice.

Advocates for the Petitioners: Soli J. Sorabji, J.B. Dadachanji, Ravinder Narain, T.N. Ansari, Joel Pares, S. Sukumaran and Dr. Chandrachud.

Advocates for the Respondents: L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Ms. S. Relan

Brief Facts:

  • These writ petitions have been filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating and re-promulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely:
    • (i) Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983;
    • (ii) The Bihar Intermediate Education Council Third Ordinance, 1983; and
    • (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983.

Issue: Can the Governor go on re-promulgating ordinances for an indefinite period of time and thus take over to himself the power of the Legislature to legislate through the power vested in him under Article 213 of the Constitution?

Arguments of the respondent:

  • The petitioners had no locus standi to maintain this writ petition since out of the three ordinances challenged on behalf of the petitioners, two of them, namely, Bihar Forest Pro- duce (Regulations of Trade) Third Ordinance, 1983 and the Bihar Bricks Supply (Control) Third Ordinance, 1983 had already lapsed and their provisions were enacted in Acts of the Legislature and so far as the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act.
  • The petitioners are not entitled to challenge the practice prevalent in the State of Bihar of re-promulgating ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validity of this practice.
  • In any event, the question raised before the Court in these writ petitions was academic in nature and should not be adjudicated upon by the Court.

Arguments for the appellants:

  • Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 imposes a restriction on the sale of specified forest produce and it further created State monopoly for sale and purchase of such forest produce.
  • Clause (7) of this ordinance conferred power on the State Government to fix the price at which the specified forest produce may be purchased by it or by any authorized forest officer or agent from the growers of such forest produce.
  • The effect of these provisions in the Bihar Forest Produce (Regulations of Trade) Third Ordinance was that petitioner No. 2 was prevented from selling his forest produce to any purchaser other than those mentioned in the ordinance and his right to dispose of the forest produce was adversely affected by these provisions.
  • The Government of Bihar, it seems, made it a settled practice to go on re-promulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness.

Ratio:

  • It is undoubtedly true that the provisions of two out of the three ordinances challenged in these writ petitions were enacted into Acts of the Legislature but that happened only during the pendency of these writ petitions and at the date when these writ petitions were filed, these two ordinances were very much in operation and affected the interest of petitioners Nos. 2 and 4 respectively.
  • Moreover, the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance is still in operation though a bill incorporating the provisions of this ordinance is pending consideration before the State Legislature and it has been referred to a Select Committee. Petitioner No. 1 has sufficient interest to maintain a petition underArticle 32 even as a member of the public because it is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions.  It is clearly for the vindication of public interest that petitioner No. 1 has filed these writ petitions and he must, therefore, be held to be entitled to maintain his writ petitions. Reference was made to S.P. Gupta & Ors. v. Union of India & Ors., [1982] 2 SCR 365
  • The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.
  • The Bihar Intermediate Education Council Third Ordinance is still in force and it cannot, therefore, be said to be academic to examine the challenge to its constitutional validity. Moreover, the question raised in these writ petitions is of highest constitutional importance as it does the power of the Governor to re-promulgate ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of re-promulgation of ordinances.
  • The power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in Session. The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends.”

Held: The Bihar Intermediate Education Council Ordinance, 1983 which is still in operation is unconstitutional and void.

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