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Re-promulgation of an ordinance a fraud on the constitution: SC
IANS 02 January 2017
The Supreme Court on Monday said that re-promulgation of an ordinance was a fraud on the Constitution and the satisfaction of the President or the Governor to promulgate an ordinance was not immune from judicial review.
 
Noting that ordinance has the same force as law passed by the legislature, a seven judge constitution bench headed by Chief Justice T.S.Thakur, by a majority of 6-1 said that laying of an ordinance before the parliament or state legislature, as the case may be, is mandatory.
 
The majority judgment, delivered by Justice D.Y. Chandrachud, said that failure to place the ordinance before parliament or State legislature is a serious constitutional fraction. 
 
Justice S.A. Bobde, Justice Adarsh Kumar Goel, Justice Uday Umesh Lalit, and Justice L. Nageswara Rao supported this view, while Chief Justice Thakur gave a concurring judgment with separate reasoning. 
 
Holding that re-promulgation of an ordinance is a fraud on the constitution, the majority judgment said that the satisfaction of the President or that of the Governor was not immune from judicial review, if the satisfaction had an oblique motive.
 
The court also made it clear that no legal rights would get conferred on the beneficiaries of the ordinance after its expiry or its re-promulgation.
 
However, Justice Madan B. Lokur, in his dissenting judgment, said that there may be several exigencies for not placing the ordinance before the parliament or the state legislature and the same per se can't be said to be illegal.
 
Chief Justice Thakur said that the question on the tabling of the ordinance before the parliament or state legislatures was not before the court for adjudication and the left the same open for future adjudication.
 
The entire case is rooted in the appointment of teachers by the Bihar government by taking ordinance route. The said ordinance was re-promulgated about four times.
 
However, the successor government refused to re-promulgate the ordinance and thus the appointment of teachers made by way of an ordinance got ejected.
 
The questions examined by the top court constitution bench was on the ordinance making power of the government and was it mandatory to place the ordinance before the legislature within six weeks of its very next session.
 
Another question for adjudication was if any right was conferred on the people who were the beneficiaries of the ordinance.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.
Comments
Simple Indian
9 years ago
Having the provision of an ordinance without adequate safeguards for preventing its misuse is just one of the many serious flaws in our Constitution. In fact, it's these flaws in its provisions which have led to such a pathetic state of affairs of our parliaments (non)functioning. Ordinance is supposed to be used by the Govt of the day to legitimize a policy/action when the Parliament is not in session, and that too in emergencies, not for routine governance issues. However, with all parties using parliament sessions for scoring political points or actively preventing the govt from legislating, ordinance has become increasingly a de facto way of legislation in recent times. Sadly, the Constitution doesn't restrict usage of an ordinance to any time period, or the number of times it can be re-promulgated. This is a serious flaw and only a Constitutional review and revision can remove such flaws. Till then, it seems we have to get used to the govt and opposition parties wasting precious parliament sessions, and using ordinances in lieu of proper legislation in parliament / State legislatures after a thorough debate and discussion on proposed legislation. Mera Bharat Mahaan !
Reply
vswami
9 years ago
As personally viewed and reflected upon, instantly so, the reported majority view handed down by the apex court , - albeit on the power to re-promulgate,- brings to memory what the renowned constitutional law expert, ‘Nani’ , had to say, repeatedly, on the topic of ‘constitutional issues’ in general, and the power to promulgate an ordinance, in particular ; as distinct from / opposed to power to legislate, - only in exceptionally extreme circumstances.
For knowing intimately, anyone if so interested, may care to and mindfully read through his speeches and writings, full of unmistakable legal acumen / sublime wisdom; for example, what he said on the SC’s two of the landmark judgments- in the Kesavananda Bharati’s case (1973) and the Minerva Mills’ case (1976)
Also, for intricacies of the inherent aspects that entails, may look through:
https://www.google.co.in/?gfe_rd=cr&ei=VgxrWMa_FK398weQ1o3gAw#q=ordinance+promulgated+by+president
and selectively, -
https://blog.ipleaders.in/ordinance-making-power-critical-outlook/
Reply
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