Re-promulgation of ordinance is fraud on the Constitution: SC

CASE HAS ITS ROOTS IN APPOINTMENT OF TEACHERS BY BIHAR GOVT BY TAKING ORDINANCE ROUTE IN LATE 1980S AND EARLY 1990S

NEW DELHI: Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the Supreme Court held on Monday as it set aside a bunch of ordinance passed by the Bihar government between 1989 and 1992.

In a 6:1 majority verdict, a seven-member Constitutional bench headed by Chief Justice TS Thakur 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”.

The case has its roots in the appointment of teachers by the Bihar government by taking ordinance route in late 1980s and early 1990s. The said ordinance was re-promulgated about four times.

However, the successor government refused to re-promulgate the ordinance and the appointment of teachers made by way of ordinance got ejected.

“Re-promulgation postulates that despite the intervening session of the legislature, a fresh exercise of the power to promulgate an ordinance is being resorted to despite the fact that the legislature which was in seisin (possession) of a previously promulgated ordinance has not converted its provisions into a regularly enacted law,” the majority verdict said.

Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body, said the majority verdict delivered by Justice DY Chandrachud.

It added that failure to place the ordinance before parliament or State legislature is a serious constitutional fraction.

Besides Justice DY Chandrachud, the majority judgment was by Justice SA Bobde, Justice Adarsh Kumar Goel, Justice Uday Umesh Lalit, and Justice L Nageswara Rao. Chief Justice TS Thakur gave a concurring judgment with separate reasoning.