Seven-judge SC bench terms repromulgation of ordinances as fraud, subversion of democratic legislative processes

Repromulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes, especially when the government persistently avoids the placing the ordinances before the legislature, the Supreme Court ruled on Monday.

A seven-judge Constitution bench, by a majority of 6:1, held that repromulgation is constitutionally “impermissible” and “defeats constitutional scheme” under which a limited power to frame ordinances has been conferred upon the President and the Governors.

Justice D Y Chandrachud, who wrote the majority verdict on behalf of Justices S A Bobde, A K Goel, U U Lalit and L Nageswara Rao, 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.”

“Repromulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes,” Justice Chandrachud said.

Chief Justice T S Thakur, who wrote a concurrent but separate judgement, said that “repeated repromulgation of the ordinances was a fraud on the Constitution especially when the government of the time appears to have persistently avoided the placement of the ordinances before the legislature”.

The lone dissenting judge, Justice M B Lokur, was of the opinion that the repromulgation of an ordinance by the Governor of a state is not per se a fraud on the Constitution.

“There could be exigencies requiring the repromulgation of an ordinance. However, repromulgation of an ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that ‘circumstances exist which render it necessary for him to take immediate action’ for promulgating or repromulgating an ordinance,” he said.

The verdict came on a plea against a series of ordinances issued by the Bihar Governor between 1989 and 1992 regarding the taking over of 429 private Sanskrit schools by the state.

“We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power,” the verdict penned by Justice Chandrachud said.