Quick answer
No. In Dr. D.C. Wadhwa v. State of Bihar (decided 20 December 1986), a five-judge Constitution Bench held that the Governor's power under Article 213 to make ordinances is an emergency power and cannot be used as a substitute for legislation. Re-promulgating (issuing again) the same ordinance session after session, without placing it before the legislature, is a colourable exercise of power and a fraud on the Constitution. A seven-judge bench reaffirmed this in Krishna Kumar Singh v. State of Bihar (2017).
The law: Article 213
The Governor of a State may promulgate an ordinance at any time except when the Legislative Assembly is in session (or, in a State with a Legislative Council, except when both Houses are in session), if the Governor is satisfied that circumstances make immediate action necessary. An ordinance has the same force as an Act, but it must be laid before the Legislature and ceases to operate six weeks after the Legislature reassembles, or earlier if a resolution disapproving it is passed; the Governor may also withdraw it at any time. Article 123 gives the President a matching power for the Union.
The case
Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579, (1987) 1 SCC 378, Supreme Court of India, 20 December 1986. Bench: P.N. Bhagwati, C.J., Ranganath Misra, G.L. Oza, M.M. Dutt and K.N. Singh, JJ.; judgment by Bhagwati, C.J. Dr. Wadhwa, a professor at the Gokhale Institute of Politics and Economics, Pune, researched Bihar's practice. Between 1967 and 1981, Bihar promulgated 256 ordinances and kept them alive for periods of one to 14 years by re-promulgating them after each session. The Court struck down the Bihar Intermediate Education Council Third Ordinance, 1983 as unconstitutional and ordered the State to pay Rs. 10,000 as costs to Dr. Wadhwa.
Key points of the judgment
- Emergency power only: the ordinance power is meant for urgent situations when the legislature is not sitting; the executive cannot take over the law-making function of the legislature.
- Fraud on the Constitution: deliberately re-promulgating ordinances without bringing them before the legislature subverts the democratic process. The Court warned that there must not be "Ordinance-Raj" in the country.
- No doing indirectly what cannot be done directly: the six-week limit cannot be avoided by repeated re-promulgation.
- Narrow exception: re-promulgation may not be open to attack where the legislature genuinely could not pass the Bill in its session, for example because of heavy legislative business or a short session.
- Standing: the other petitioners were directly affected by the challenged ordinances, and Dr. Wadhwa, as a member of the public, could challenge the practice under Article 32 because a systematic breach of constitutional limits by the executive is a matter of public interest.
D.C. Wadhwa and Krishna Kumar Singh compared
| Point | D.C. Wadhwa (1986) | Krishna Kumar Singh (2017) |
|---|---|---|
| Bench | Five judges | Seven judges; majority opinion by D.Y. Chandrachud, J. for five judges |
| Re-promulgation | Fraud on the Constitution, with a narrow exception | Majority: re-promulgation is constitutionally impermissible and a fraud on the Constitution |
| Laying before the legislature | Required, and avoiding it was the core wrong | Majority: a mandatory constitutional obligation |
| Governor's satisfaction | Not in issue | Majority: not immune from judicial review; the court asks whether it rests on relevant material and is not a fraud on power or based on an oblique motive |
| Rights created under a lapsed ordinance | Not in issue | Majority: no automatic "enduring rights"; earlier Constitution Bench rulings to that effect are no longer good law, and survival depends on public interest and constitutional necessity |
For a fuller case summary, see D.C. Wadhwa v. State of Bihar.
Example
A State issues an ordinance on college admissions while the Assembly is in recess. When the Assembly meets, the government never introduces a Bill. After the session ends, it issues the same ordinance again, and repeats this for three years. Neha, a student affected by the ordinance, can challenge the later ordinances as a fraud on the Constitution under the rule in D.C. Wadhwa.
Exam point
D.C. Wadhwa (1986): routine re-promulgation of ordinances under Article 213 without placing them before the legislature is a fraud on the Constitution; Krishna Kumar Singh (2017) reaffirmed this and made laying before the legislature mandatory.
