TMI Blog1986 (12) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legislature are not in session. The facts giving rise to these writ petitions are disturbing and we may briefly state them as follows: 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. Petitioner No. 1 is a professor of economics is the Gokhale Institute of Politics and Economics, Pune and he has spent a number of years in studying the constitutional functioning of Indian politics. He is deeply interested in the preservation and promotion of constitutional functioning of the administration in the country. He has made a deep and profound study of the practice which is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents that 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 Produce (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 respondents also contended that the petitioners are not entitled to challenge the practice prevalent in the State of Bihar of repromulgating ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validity of this practice. We do not think this preliminary objection raised on behalf of the respondents is well-founded. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional limitations and if any practice is adopted by the Executive which is inflagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. We must therefore reject the preliminary contention raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions. The respondents then contended that 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. But this contention urged on behalf of the respondents is also without force since 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12--13 ---- 13-14 1 Total 256 The enormity of the situation would appear to be startling if we have a look at some of the ordinances which were allowed to continue in force by the methodology of repromulgation. The following table indicates in the case of each ordinance, the title of the ordinance, the date of first promulgation and the total period for which the ordinance was continued in force by adopting the stratagem of repromulgation: s. No. Name of the Ordinance Date on which First Promulgated Life of the Ordinance 1 2 3 4 Year Months Days i. The Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance 1968 (Ordinance No. 3 of 1968) 13.11.1968 13 11 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.8.70 19.1.81 35 about 12 years 3. The Bihar Hindu Religious Trusts (Amendment) Ordinance, 1970. 5.9.70 22.4.81 37 about 12 years 4. The Bihar State Aid to Industries (Amendment) 1970 10.9.70 23.4.81 34 about 12 years 5. The Bihar Khadi and Village Industries (Amendment) 1970 17.9.70 19.1.81 35 about 12 years It may be pointed out that the three ordinances challenged in these writ petitions also suffered the same process of repromulgation from time to time. The Bihar Forest Produce (Regulation of Trade) Third Ordinance was first promulgated in 1977 and after its expiry, it was repromulgated several times without it being converted into an Act of the State Legislature and it continued to be in force until it was placed by Bihar Act No. 12 of 1984 on 17th May, 1984. So far as the Bihar Intermediate Education Council Third Ordinance is concerned it was initially p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ordinances . It would be profitable to reproduce this circular letter dated 29th July. 1981 as it indicates the routine manner in which the ordinances were repromulgated by the Governor of Bihar: Letter No. P.A./Misc. 1040/80-872 GOVERNMENT OF BIHAR DEPARTMENT OF PARLIAMENTARY AFFAIRS From: Basant Kumar Dubey Special Secretary to the Govt. To: All Commissioners and Secretaries, All Special Secretaries, All Additional Secretaries, All Heads of Departments Patna 15--dated 29th July, 1981 Subject: Regarding re-promulgation of Ordinances. Sir, I am directed to say that the budget Session of the Legislature (June-July 1981) has been got prorogued after the completion of the business of both the houses on July 28, 1981. Under the provisions of Art. 213(2)(a) of the Constitution all the Ordinances cease to be in force after six weeks of the date of the reassembly of the Legislature. This time the session of the Legislative Assembly has begun on June 29, 1981 and that of the Legislative Council on July 1, 1981. Therefore from 1.7. 1981, six weeks, that is, 42 days would be completed on 1 1.8.1981 and if they are not repromulgated before the aforesaid date, then a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council, and (b) may be withdrawn at any time by the Governor. Explanation--Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of these dates for the purposes of this clause ....................................... 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 primary law making authority under the Constitution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin this time the Legislature does not pass such an Act, the Ordinance must come to an end. The Executive cannot continue the provisions of the Ordinance in force without going to the Legislature. The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law making function of the Legislature. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued in force beyond the period of six weeks has to go before the Legislature_which is the constitutional authority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Executive. Such a strategem would be repugnant to the constitutional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislature. Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the Court is not entitled to examine whether the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an Ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh Ors. v. Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh v. Commissioner of Income Tax, AIR 1943 PC 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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