The Supreme Court on Monday held that the re-promulgation of ordinances was a “fraud on the Constitution” when they are not placed before the legislature. “Re-promulgation [of ordinances] defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the president and governors,” a seven-judge bench observed, adding that such an order enforced by the Centre is not immune from judicial review, The Times of India reported.
The judges also observed that it was obligatory on the Centre to seek legislative approval for an ordinance and failure to do so would amount to “serious constitutional infraction and abuse of the constitutional process”. “A government that has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the ordinance, which it has failed to place at all, is valid till it ceases to operate.”
The verdict was pronounced during a hearing on a number of petitions that challenged the validity of ordinances issued and re-promulgated in Bihar between 1989 and 1991. While five of the judges were of the same opinion, one of them disagreed. However, outgoing Chief Justice TS Thakur, who headed the bench, questioned whether the government was mandated to place an ordinance before the legislature, according to The Indian Express.
“The danger of re-promulgation lies in the threat that it poses to the sovereignty of Parliament and the state legislatures, which have been constituted as primary law-givers under the Constitution,” the bench said. “Open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through lawmaking.”
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