D.C. Wadhwa and Others v. State of Bihar (1986) – Ordinance Power & Democracy

CASE TITLE: D.C. Wadhwa and Others v. State of Bihar (1986)

In Bihar, the government was using a shortcut: instead of passing proper laws in the legislature, it kept issuing and re-issuing the same ordinances. These ordinances were supposed to be temporary emergency laws, but they were treated like permanent laws.

• Professor D.C. Wadhwa and three other citizens (a farmer, a student, and a brick manufacturer) challenged this practice in the Supreme Court under Article 32.
• They argued that the Governor’s ordinance power under Article 213 was being misused and that the government was bypassing the elected legislature.
• The Supreme Court held that repeated re-promulgation of the same ordinance is unconstitutional.
• The Court said that the Governor cannot act as a mini-parliament; law-making is mainly the work of the legislature.

This case is a key decision on separation of powers and the limits of emergency powers in a democracy.

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1. Locus standi: Did the petitioners have the right to file this case in the Supreme Court? Could they challenge the ordinance practice in public interest?
2. Ordinance power & Article 213: Can the Governor keep issuing the same ordinance again and again, without trying to turn it into a regular Act passed by the legislature?
3. Limit of ordinance life: Is there a clear time limit after which an ordinance must either be approved by the legislature or allowed to die?
4. Separation of powers: Does repeated re-promulgation of ordinances turn the Governor into a mini-parliament, and therefore damage the basic democratic structure?

In simple words, the Court had to decide: Can the executive rule by ordinance and sideline the legislature?

Key Provisions

• Article 213 – Governor’s Ordinance-Making Power
  When the State Legislature is not in session and there is a need for immediate action, the Governor may issue an ordinance, which has the same force as a law passed by the legislature, but only for a limited time.
• Temporary Nature of Ordinance
  An ordinance must be placed before the Legislature when it meets again. It ceases to operate at the end of six weeks from the reassembly of the Legislature unless it is approved and turned into an Act. In practice, the total maximum life is treated as about 7½ months.
• Article 32 – Right to Constitutional Remedies
  Allows a person to directly approach the Supreme Court to enforce fundamental rights. It is also used in Public Interest Litigation (PIL) when the issue affects a large number of people.

Supporting Principles

• Separation of Powers: Law-making is mainly the function of the legislature. The executive cannot convert an emergency power into a regular law-making tool.
• Colourable Exercise of Power: When power is used for a purpose different from what the Constitution allows, it becomes a “colourable” or disguised use of power and can be struck down.

The Supreme Court strongly criticised the practice of ruling through re-promulgated ordinances and gave a clear answer on each point.

Maintainability & Locus Standi

• The Court held that all four petitioners had valid locus standi. They were either directly affected or acting in public interest.
• It recognised that a citizen has a right to be governed only by constitutional laws, not by unconstitutional practices.
• The Court said this was not an academic issue but a serious constitutional problem that could harm democracy.

On Re-Promulgation of Ordinances

• The Court held that repeated re-promulgation of the same ordinance is unconstitutional.
• Ordinance power is an emergency power, not a method to continue a law for years without legislative approval.
• The Bihar Intermediate Education Council Ordinance, 1983 was declared unconstitutional and void.
• It warned that such practice makes the Governor act like a “parallel legislature”, which the Constitution does not allow.

Time Limit of Ordinances

The Court clarified that an ordinance can operate only for a limited time – in practice, at most about 7½ months from issue to lapse if not approved by the legislature. After that, if the legislature does not pass it, the government cannot simply issue it again and again.

1. Ordinance power is exceptional: Article 213 is meant for urgent and temporary situations when the legislature is not in session. It cannot be used as a regular substitute for legislation.
2. Re-promulgation is unconstitutional: Repeatedly issuing the same ordinance without genuine effort to place it before the legislature and get it passed is a colourable exercise of power and violates the constitutional scheme.
3. Legislature is supreme in law-making: The Governor and the executive cannot convert ordinance power into a permanent law-making channel. That would undermine the role of the legislature in a democracy.
4. PIL & citizen’s right: Any citizen can question such misuse in public interest because everyone has a right to be governed only by constitutional and valid laws.

This judgment draws a clear line between emergency rule and normal democratic rule. It reminds governments that:

• Ordinances are like “emergency medicine”, not daily food for the legal system.
• Elected legislatures must remain at the centre of law-making.
• Courts will step in when the executive tries to use procedural tricks to stay in power or avoid debate.

For students, this case is a must-remember example for topics like ordinance-making power, separation of powers, PIL, and colourable exercise of power.

• Case citation: D.C. Wadhwa and Others v. State of Bihar (1986), Supreme Court of India.
• Main topic: Misuse of Governor’s ordinance power under Article 213; invalidity of re-promulgation.
• Holding: Repeated re-promulgation of the same ordinance is unconstitutional. The Governor cannot act as a substitute legislature.
• Reasoning: Ordinances are temporary emergency tools and must be placed before the legislature; otherwise, it becomes a colourable exercise of power.
• Concepts to mention: ordinance, Article 213, re-promulgation, separation of powers, PIL, colourable legislation, legislative supremacy.

3-Step Hook to Recall the Case

1. Picture Bihar as “Ordinance State”: Imagine boards everywhere saying “Welcome to Ordinance Raj – Legislature on Holiday”.
2. See Prof. Wadhwa ringing the alarm bell: He walks to the Supreme Court with a farmer, a student, and a brick maker and says, “This is not how democracy works.”
3. Hear the Supreme Court’s loud reply: “No more repeated ordinances. The Governor is not a mini-parliament. Go back to the Legislature.”

Ordinance

A temporary law made by the Governor (or President at Union level) when the legislature is not in session and urgent action is needed.

Re-promulgation

Issuing the same ordinance again after it has lapsed, instead of placing it before the legislature and turning it into an Act.

Locus Standi

The legal right or capacity of a person to bring a case before the court.

Colourable Exercise of Power

When power seems to be used legally on the surface, but actually it is used for an improper or hidden purpose.

Public Interest Litigation (PIL)

A case filed to protect the interest of the public or a large group, even if the petitioner is not the only affected person.

Separation of Powers

The idea that law-making, law-executing, and law-interpreting functions should be kept mainly in separate hands – legislature, executive, and judiciary.