Repromulgation of ordinances is a “fraud” on the Constitution and a sub-version of democratic legislative processes, especially when the government persistently avoids the placing the ordinances before the legislature, the Supreme Court ruled on Monday.
A seven-judge Constitution bench, by a majority of 6:1, held that repromulgation is constitutionally “impermissible” and “defeats constitutional scheme” under which a limited power to frame ordinances has been conferred upon the President and the Governors.
Justice DY Chandrachud, who wrote the majority verdict on behalf of Justices SA Bobde, AK Goel, UU Lalit and L Nageswara Rao, said, “The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process.”
“Repromulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes,” Justice Chandrachud said.
Outgoing Chief Justice TS Thakur, who wrote a concurrent but separate judgement, said that “repeated repromulgation of the ordinances was a fraud on the Constitution especially when the government of the time appears to have persistently avoided the placement of the ordinances before the legislature”.
The lone dissenting judge, Justice MB Lokur, was of the opinion that the repromulgation of an ordinance by the Governor of a state is not per se a fraud on the Constitution.
“There could be exigencies requiring the repromulgation of an ordinance. However, repromulgation of an ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that ‘circumstances exist which render it necessary for him to take immediate action’ for promulgating or repromulgating an ordinance,” he said.
The verdict came on a plea against a series of ordinances issued by the Bihar Governor between 1989 and 1992 regarding the taking over of 429 private Sanskrit schools by the state.
The majority verdict also said, “Repromulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law making authority in a parliamentary democracy”.
The majority verdict also said that 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, adding that requirement of laying an ordinance before Parliament or the state legislature is a “mandatory constitutional obligation cast upon the government”.