BHAGWATI - (1.) THESE petitions under Article 32 of the Constitution raise a short question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re-promulgate ordinances from time to time without getting them replaced by Acts of the Legislature. The question is, can the Governor go on re-promulgating ordinances for an indefinite .period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 only for the purpose of enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legislature are not in session. The facts giving rise to these writ petitions are disturbing and we may briefly state them as follows :
(2.) THESE writ petitions have been filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating and re-promulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (i) Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983; (ii) The Bihar Intermediate Education Council Third Ordinance, 1983, and (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983. Petitioner No. 1 is a professor of economics in the Gokhale Institute of Politics and Economics, Pune and he has spent a number of years in studying the constitutional functioning of Indian politics. He is deeply interested in the preservation and promotion of constitutional functioning of the administration in the country. He has made a deep and profound study of the practice which is being followed in the State of Bihar of promulgating and re-promulgating ordinances from time to time without enacting them into Acts of the Legislature. Petitioner No. 2 is an occupancy Raiyat of village Anigara, Kunti Police Station in the district of Ranchi. He grows forest produce in his Raiyat land. Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 imposes restriction on the sale of specified forest produce and it further created State monopoly for sale and purchase of such forest produce. Clause (7) of this ordinance conferred power on the State Government to fix the price at which the specified forest produce may be purchased by it or by any authorised forest officer or agent from the growers of such forest produce. The effect of these provisions in the Bihar Forest Produce (Regulations of Trade) Third Ordinance was that the petitioner No. 2 was prevented from selling his forest produce to any purchaser other than those mentioned in the ordinance and his right to dispose of the forest produce was adversely affected by these provisions and he was therefore interested in challenging the constitutional validity of this ordinance. Petitioner No. 3 is a student studying in Intermediate (Science) Class in A.N. College, Patna. He was affected by the Bihar Intermediate Education Council Third Ordinance. It is not necessary to refer to the provisions of this ordinance since it could not be seriously disputed on behalf of the respondents that the provisions of this ordinance affected, curtailed and/or regulated the rights of petitioner No. 3 or at least had the potential of doing so and petitioner No. 3 therefore challenged the constitutional validity of this ordinance. Similarly petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he is the proprietor of South Bihar Agency, Patna, a brick manufacturing concern operating under a licence issued by the Mining and the Industry Department of the Government of Bihar and the provisions of this ordinance empowering the State Government to control and regulate the manufacture, distribution, transport, disposal and consumption of bricks, as also the price at which the bricks may be bought or sold affected petitioner No. 4 and he accordingly joined the writ petitioners and challenged the constitutional validity of this ordinance. It was contended on behalf of the respondents that the petitioners had no locus standi to maintain this writ petition since out of the three ordinances challenged on behalf of the petitioners, two of them, namely, Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983 and The Bihar Bricks Supply (Control) Third Ordinance, 1983 had already lapsed and their provisions were enacted in Acts of the Legislature and so far as the third ordinance, namely, the Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act. The respondents also contended that the petitioners are not entitled to challenge the practice prevalent in the State of Bihar of re-promulgating ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validity of this practice. We do not think this preliminary objection raised on behalf of the respondents is well founded. It is undoubtedly true that the provisions of two out of the three ordinances challenged in these writ petitions were enacted into Acts of the Legislature but that happened only during the pendency of these writ petitions and at the date when these writ petitions were filed, these two ordinances were very much in operation and affected the interest of petitioners Nos. 2 and 4 respectively. Moreover, the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance is still in operation though a bill incorporating the provisions of this ordinance is pending consideration before the State Legislature and it has been referred to a Select Committee and the right of petitioner No. 3 to pursue a particular course of study is vitally affected by the provisions contained in that ordinance. Besides petitioner No. 1 is a Professor of Political Science and is deeply interested in ensuring proper implementation of the constitutional provisions. He has sufficient interest to maintain a petition under Article 32 even as a member of the public because it is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions. Of course, if any particular ordinance was being challenged by petitioner No. 1 he may not have the locus standi to challenge it simply as a member of the public unless some legal right or interest of his is violated or threatened by such ordinance, but here what petitioner No. 1 as a member of the public is complaining of is a practice which is being followed by the State of Bihar of re-promulgating the ordinances from time to time without their provisions being enacted into Acts of the Legislature. It is clearly for vindication of public interest that petitioner No. 1 has filed these writ petitions and he must therefore be field to be entitled to maintain his writ petitions. In S. P. Gupta v. Union of India, (1982) 2 SCR 365: (AIR 1982 SC 149) one of us (Bhagwati, J. as he then was) observed :- "Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision." The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. We must therefore reject the preliminary contention raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions. The respondents then contended that in any event the question raised before the Court in these writ petitions was academic in nature and should not be adjudicated upon by the Court. But this contention urged on behalf of the respondents is also without force since the Bihar Intermediate Education Council Third Ordinance is still in force and it cannot therefore be said to be academic to examine the challenge to its constitutional validity. Moreover the question raised in these writ petitions is of highest constitutional importance as it does the power of the Governor to re-promulgate ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of repromulgation of ordinances. If this question is not decided on merits, the correct position in regard to the constitutional limitations on the power of the Governor to re-promulgate ordinances will remain undetermined. We are of the view that this question has great public importance and it must be decided by us on merits in order to afford guidance to the Governor in the exercise of his power to re-promulgate ordinances from time to time.
(3.) WE shall now proceed to state how the Governor in the State of Bihar has been indulging in the practice of re-promulgating the ordinances from time to time so as to keep them alive for an indefinite period of time. Petitioner No. 1 carried out thorough and detailed research in the matter of re-promulgation of ordinances by the Governor of Bihar from time to time and the result of this research was compiled by him and published in a book entitled "Re-promulgation of Ordinances: Fraud on the Constitution of India." Some of the relevant extracts from this book have been annexed to the writ petition indicating the number of ordinances re-promulgated repeatedly by the Governor of Bihar. It is clear on a perusal of these extracts that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all those ordinances were kept alive for periods ranging between One to 14 years by re-promulgation from time to time. Out of these 256 ordinances 69 were re-promulgated several times and kept alive with the prior permission of the President of India. The following table would indicate the categorisation of these 256 ordinances by reference to their life groups : JUDGEMENT_378_1_1987Html1.htm The enormity of the situation would appear to be startling if we have a look at some of the ordinances which were allowed to continue in force by the methodology of repromulgation. The following table indicates in the case of each ordinance, the title of the ordinance, the date of first promulgation and the total period for which the ordinance was continued in force by adopting the stratagem of re-promulgation : JUDGEMENT_378_1_1987Html2.htm It will thus be seen that the power to promulgate ordinances was used by the Government of Bihar on a large scale and after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were re-promulgated containing substantially the same provisions almost in a routine manner. This would be clear from the fact that on 26/08/1973 the Governor of Bihar re-promulgated 54 ordinances with the same provisions and on 17/01/1973,49 ordinances were repromulgated by the Governor of Bihar containing substantially the same provisions and again on 27/04/1974,7 ordinances were re-promulgated and on 29/04/1974, 9 ordinances were repromulgated with substantially the same provisions. Then again on 23/07/1974, 51 ordinances were repromulgated which included the self-same ordinances which had been re-promulgated on 27th and 29/04/1974. On 18/03/1979,52 ordinances were re-promulgated while on 18/08/1979, 51 ordinances were repromulgated containing substantially the same provisions. 49 ordinances were re-promulgated on 28/04/1979 and on 18/08/1979 51 ordinances were repromulgated. This exercise of making mass re-promulgation of ordinances on the prorogation of the session of the State Legislature continued unabated and on 11/08/1980, 49 ordinances were repromulgated while on 19/01/1981, the number of ordinances re-promulgated was as high as 53. The following table shows how many times the same Ordinance was repromulgated in order to keep its provisions in force : JUDGEMENT_378_1_1987Html3.htm It may be pointed out that the three ordinances challenged in these writ petitions also suffered the same process of repromulgation from time to time. The Bihar Forest Produce (Regulation of Trade) Third Ordinance was first promulgated in 1977 and after its expiry, it was re-promulgated several times without it being converted into an Act of the State Legislature and it continued to be in force until it was replaced by Bihar Act No. 12 of 1984 on 17/05/1984. So far as the Bihar Intermediate Education Council Third Ordinance is concerned it was initially promulgated in 1982 and after its expiry, it was again re-promulgated by the Governor of Bihar four times with the same provisions and it was ultimately allowed to lapse on 6/06/1985, but then the Bihar Intermediate Education Council Ordinance, 1985 was promulgated which contained almost the same provisions as those contained in the Bihar Intermediate Education Council Third Ordinance. Similarly the Bihar Bricks Supply (Control) Third Ordinance was initially promulgated in 1979 and after its expiry it was re-promulgated by the Governor of Bihar from time to time and continued to be in force until 17/05/1984 when it was replaced by Bihar Act No. 13 of 1984. Thus the Bihar Forest Produce (Regulations of Trade) Third Ordinance continued to be in force for a period of more than six years, the Bihar Intermediate Education Council Third Ordinance remained in force for a period of more than one year, while the Bihar Bricks Supply (Control) Third Ordinance was continued to in force for a period of more than five years. The Government of Bihar, it seems, made it a settled practice to go on repromulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness. Immediately at the conclusion of each session of the State Legislature, a circular letter used to be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Commissioners, and Secretaries, Special Secretaries, Additional Secretaries and all Heads of departments intimating to them that the session of the Legislature had been 'got prorogued' and that under Article 213 Clause (2)(a) of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the Legislature and that they should therefore get in touch with the Law Department and immediate action should therefore be initiated to get "all the concerned ordinances re-promulgated", so that all those ordinances are positively repromulgated before the date of their expiry. This circular letter also used to advise the officers that if the old ordinances were repromulgated in their original form without any amendment, the approval of the Council of Ministers would not be necessary. The petitioners placed before the Court a copy of one such circular letter dated 29/07/1981 and it described the subject of the communication as "regarding repromulgation of ordinances". It would be profitable to reproduce this circular letter dated 29/07/1981 as it indicates the routine manner in which the ordinances were re-promulgated by the Governor of Bihar: "Letter No. P.A./Misc.1040/80-872 Government of Bihar Department of Parliamentary Affairs From : Basant Kumar Dubey Special Secretary to the Govt. To: All Commissioners and Secretaries, All Special Secretaries, All Additional Secretaries, All Heads of Departments. Patna 15 - dt. 29/07/1981 Subject : Regarding re-promulgation of Ordinances. Sir, I am directed to say that the budget Session of the Legislature (June-July 1981) has been got prorogued after the completion of the business of both the houses on 28/07/1981. Under the provisions of Art. 213(2)(a) of the Constitution all the Ordinances cease to be in force after six weeks of the date of the reassembly of the Legislature. This time the session of the Legislative Assembly has begun on 29/06/1981 and that of the Legislative Council on 1/07/1981. Therefore from 1-7-1981, six weeks, that is, 42 days would be completed on 11-8-1981 and if they are not re-promulgated before the aforesaid date, then all the Ordinances will cease to be in force after 11-8-1981. It is, therefore, requested that the Law Department may be contacted and immediate action be initiated to get all the concerned Ordinances re-promulgated so that they are definitely re-promulgated before 11-8-1981. If the old ordinances are re-promulgated in their original form without any amendment, then the approval of the Council of Ministers is not necessary. This should be given the top most priority and necessary action should be taken immediately. Yours faithfully, Sd/- Basant Kumar Dubey Special Secretary to Bihar Government." This circular letter clearly shows beyond doubt that the re-promulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it necessary for the Governor to take immediate action by way of re-promulgation of the ordinances. The Government seemed to proceed on the basis that it was not necessary to introduce any legislation in the Legislature but that the law could be continued to be made by the Government by having the ordinances re-promulgated by the Governor from time to time. The question is whether this practice followed by the Government of Bihar could be justified as representing legitimate exercise of power of promulgating ordinances conferred on the Governor under Article 213 of the Constitution. ;