D.C. Wadhwa v. State of Bihar

Dr. D.C. Wadhwa was a professor of economics at the Gokhale Institute of Politics and Economics in Pune. His research showed that the Bihar government kept issuing the same ordinances again and again without ever getting them passed by the Assembly. As soon as an Assembly session ended, the same ordinance was issued again.

According to his research, 256 ordinances were re-promulgated in Bihar in this way between 1967 and 1981. One of them, the Bihar Sugarcane Regulation of Supply and Purchase Ordinance, 1968, was re-promulgated 39 times and kept alive for about fourteen years.

The lecture describes four petitioners: (1) Dr. Wadhwa himself, filing in public interest; (2) a farmer who, because of the Bihar Forest Produce Regulation of Trade Ordinance, 1983, could sell his forest produce only to the State and its authorised agents; (3) a student whose studies were affected by the Bihar Intermediate Education Council Ordinance, 1983; and (4) a brick manufacturer whose business was placed under strict control by the Bihar Bricks Supply Control Ordinance.

All four filed a writ petition in the Supreme Court under Article 32. They argued that repeatedly issuing ordinances was unconstitutional because the Governor was bypassing the legislature and making laws himself.

1. Locus standi: did the petitioners have the legal right to file the case? Under the traditional rule, only a person who had suffered direct harm could approach the court.

2. Could the Governor keep a temporary law in force by issuing it again and again, without ever turning it into a permanent law? Did this go against Article 213?

Arguments of the petitioners: Repeated issuing of ordinances was unconstitutional. The Governor was bypassing the legislature and doing the work of law-making himself.

Arguments of the State of Bihar: (1) The petitioners had no locus standi. Two ordinances had already become Acts, and a third was under consideration in the Assembly, so the petition had lost its purpose. (2) The petitioners were outsiders with no personal interest, so a petition filed in the name of public interest was not maintainable. (3) The issue was merely academic. Once an ordinance had lapsed or become an Act, the court should not spend time on it. (4) The court could not judge the Governor's satisfaction. Whether an emergency-like situation existed was for the Governor alone to decide.

On maintainability, the Court rejected the State's objections. When the petition was filed, the ordinances were still in force. The farmer and the brick manufacturer were directly affected. The student was affected by the education ordinance, which was still active even though a bill was pending. The professor's petition was also valid, because every citizen has the right to be governed only by constitutionally valid laws, and a petition in public interest is lawful. The Court also held that the issue was not academic. It was a serious constitutional question about misuse of the ordinance power.

On the merits, the Court held that an ordinance is an emergency power, not a tool for regular law-making. Under the Constitution, law-making belongs to the legislature, not the executive. Re-promulgating the same ordinance again and again, without placing it before the legislature, is a fraud on the Constitution and a colourable exercise of power. The Bihar government had taken over the legislature's own role.

The Court declared the Bihar Intermediate Education Council Ordinance, 1983, unconstitutional and void. It held that routine re-promulgation of ordinances, without bringing them before the legislature, is unconstitutional, and that the Governor cannot be made a substitute for the legislature.

The Court allowed one small exception. If the legislature had too much work or too little time in a particular session, and the bill could not be passed for that reason alone, re-promulgation would not be questioned.

On the Governor's satisfaction, the lecture says the Court accepted the State's point. It held, however, that the real question in the case was not satisfaction but the power to re-promulgate repeatedly.

Constitution of India, Article 213 (Governor's ordinance-making power); Article 123 (President's ordinance-making power); Article 32 (writ petition to the Supreme Court); Bihar Sugarcane Regulation of Supply and Purchase Ordinance, 1968; Bihar Forest Produce Regulation of Trade Ordinance, 1983; Bihar Intermediate Education Council Ordinance, 1983; Bihar Bricks Supply Control Ordinance

This case is a landmark on the limits of executive law-making. It establishes that an ordinance is an emergency tool and not a permanent shortcut for making laws. It protects the supremacy of the legislature and the democratic process.

It also widened locus standi through public interest litigation, holding that every citizen has the right to be governed by valid laws.

Its thinking was later strengthened in Krishna Kumar Singh v. State of Bihar (2017). There a seven-judge bench held that even the satisfaction behind an ordinance is open to judicial review. That bench repeated that re-promulgation is a fraud on the Constitution and held that placing an ordinance before the legislature is mandatory.

The principle applies equally to the President's ordinances, because the language of Articles 123 and 213 is almost identical.

Exam keywords: Article 213, Article 123, repeated re-promulgation, fraud on the Constitution, colourable exercise of power, and locus standi in public interest.

Hypothetical: Neha is the Governor of an imaginary State. She issues an ordinance controlling the sale of rice. When the Assembly meets, the government never introduces a bill to replace the ordinance, so the ordinance lapses. The day after the session ends, Neha issues the same ordinance again. This happens six times over four years.

Prince, a citizen, and Farhan, a rice trader affected by the ordinance, challenge this in court. Applying D.C. Wadhwa, the court would hold that the repeated re-promulgation is a fraud on the Constitution and a colourable exercise of power, and the ordinance would be struck down. Prince's petition is maintainable in public interest, and Farhan, being directly affected, also has standing.

The result might be different if the government could show that the bill had genuinely been introduced but could not be passed in one particular session only because the Assembly had too much work.