D.C. Wadhwa case

Also called: D.C. Wadhwa v. State of Bihar (1986) · Topic: Union Executive: President, Vice-President, Prime Minister and Council of Ministers · NCERT: Beyond NCERT

Meaning

D.C. Wadhwa v. State of Bihar (1986) is the case in which a five-judge bench of the Supreme Court held that re-issuing ordinances again and again, without ever placing them before the legislature, is against the Constitution and a "fraud on the Constitution" [2]. It matters because it was the first major ruling to stop governments from using ordinances as a normal way to make laws. That practice is often called "ordinance raj".

Explanation

Background: what an ordinance is

• Ordinance: a temporary law made by the executive when the legislature is not sitting. While it lasts, it has the same force as a law passed by the legislature.
• Who makes it:
• The President, for the Union, under Article 123.
• The Governor, for a state, under Article 213 [3].

• Both act on the advice of their ministers. In practice, it is the government's power.

• Built-in time limit:

• The ordinance must be laid (formally placed) before the legislature when it meets again.

• It lapses (stops working) six weeks after the legislature reassembles, unless a proper Act replaces it.

• Bihar's ordinances were Governor's ordinances under Art. 213. The same rules apply to the President under Art. 123.

What Bihar did: the facts

• Who found it: D.C. Wadhwa, an economics professor, studied Bihar's ordinances.
• The numbers:
• Bihar issued 256 ordinances between 1967 and 1981 [2].
• 69 of them were re-promulgated [2].

• 11 were kept alive for more than 10 years [2]. Some lasted about 14 years.

• How the trick worked:

• An ordinance was issued while the legislature was not sitting.
• It was never placed before the legislature, and no Bill was passed to replace it.

• The legislature was then prorogued (its session was formally ended), and the same ordinance was issued again.

• Re-promulgation: issuing an ordinance again, in the same form, after it has lapsed, without getting the legislature to pass it.

What the Court held

• Re-promulgation is unconstitutional: the five-judge bench held that this practice goes against the Constitution [2].
• "Fraud on the Constitution": the government was doing something the Constitution does not allow, while pretending to stay within its rules. This subverts (secretly undermines) the democratic process.
• Key line: the ordinance power is "essentially a power to be used to meet an extraordinary situation" and cannot be "perverted to serve political ends" [4].
• The reasoning, step by step:
• The legislature, not the executive, is the main law-maker.
• The ordinance power is only an emergency tool for when the legislature cannot meet.
• Re-promulgating without laying turns that emergency tool into a parallel way of making laws. This takes the legislature's role away.

Limits of the ruling

• The Court did not abolish the ordinance power. Real emergencies still justify it.
• It targeted routine, repeated re-promulgation that avoids the legislature.
• Some questions were left for later. For example, what happens to actions taken under a lapsed ordinance? The seven-judge bench in Krishna Kumar Singh (2017) answered these.

In the Constitution and practice

• Constitutional base:
• Art. 123 gives the President's ordinance power. Art. 213 gives the Governor's [3].
• Art. 123(2)(a) makes laying before Parliament mandatory. The ordinance lapses six weeks after reassembly.
• Art. 85 says the gap between two sessions cannot be more than six months. So an ordinance normally lives for at most about 6 months + 6 weeks.

• Art. 13(3) counts an ordinance as "law", so it must respect Fundamental Rights.

• Where D.C. Wadhwa fits in the line of judicial review cases (judicial review means the courts' power to check whether government action follows the Constitution):

• R.C. Cooper v. Union of India (1970): the President's decision to issue an ordinance can be challenged, for example if there was no real urgency or the aim was to avoid debate [3].
• 38th Amendment (1975): added Art. 123(4), which made the President's satisfaction final and beyond court review [3].
• 44th Amendment (1978): deleted Art. 123(4), so courts could review the satisfaction again [3][1].
• A.K. Roy v. Union of India (1982): the ordinance power is a legislative power, so courts can review it [3].
• D.C. Wadhwa (1986): re-promulgation is a fraud on the Constitution.

• Krishna Kumar Singh v. State of Bihar (2017, seven judges):

  • The case was about a 1989 Bihar ordinance on Sanskrit schools that was re-promulgated again and again.
  • The Court repeated that re-promulgation is "a fraud on the Constitution and a subversion of democratic legislative processes" [2].
  • It added that laying is mandatory, that satisfaction can be reviewed, and that the effects of a lapsed ordinance do not survive automatically.

• Re-promulgation still happens after 1986:

• Land Acquisition (Amendment): first issued in December 2014, re-promulgated in April and May 2015 [2], then allowed to lapse. The Rajya Sabha was prorogued in March 2015 so that it could be re-issued.
• Enemy Property (Amendment): promulgated five times in 2016-17, then replaced by an Act in 2017.
• Triple talaq ordinance: issued three times in 2018-19, then made an Act in 2019.
• Kerala University of Digital Sciences: issued five times between January 2020 and February 2021 [2].
• Securities Laws (Amendment): issued three times in 2013-14 [2][4].

Don't confuse with

• Krishna Kumar Singh (2017): D.C. Wadhwa (1986, five judges) first called re-promulgation a fraud. Krishna Kumar Singh (2017, seven judges) went further. It held that laying is mandatory and that the effects of a lapsed ordinance are not saved automatically. Both cases came from Bihar.
• R.C. Cooper (1970): R.C. Cooper is about whether the satisfaction behind a single ordinance can be challenged. D.C. Wadhwa is about the repeated re-issue of the same ordinance.
• A.K. Roy (1982): A.K. Roy held the ordinance power is legislative and reviewable. It was about the National Security Ordinance, 1980, not about re-promulgation.
• Disapproval or lapse of an ordinance: these are the normal endings under Art. 123. An ordinance lapses six weeks after reassembly, or ends early when both Houses pass resolutions disapproving it. Re-promulgation is the abuse that D.C. Wadhwa struck down.

Prelims Hooks

• D.C. Wadhwa (1986): re-promulgating ordinances is a "fraud on the Constitution". The state was Bihar, and the bench had five judges [2].
• The Bihar numbers: 256 ordinances (1967–1981), 69 re-promulgated, 11 kept alive for more than 10 years [2].
• The Bihar ordinances were issued by the Governor under Art. 213. The President's matching power is Art. 123.
• Case–principle pairs:
• R.C. Cooper (1970): the satisfaction can be challenged.
• A.K. Roy (1982): the power is legislative and reviewable.
• D.C. Wadhwa (1986): re-promulgation is a fraud.

• Krishna Kumar Singh (2017, seven judges): laying is mandatory, and lapsed effects do not survive automatically.

• Trap: the 38th Amendment (1975) made the President's satisfaction final through Art. 123(4). The 44th Amendment (1978) deleted it. D.C. Wadhwa came after the satisfaction was open to review again.

• An ordinance lapses six weeks after the legislature reassembles. Re-promulgation was a way to dodge this limit.

Mains Points

• Executive law-making vs legislative control:
• D.C. Wadhwa protects separation of powers (each organ of government stays in its own field). Ordinances are meant to be a temporary exception, not a second law-making track.

• Routine re-promulgation lets a government skip debate and committee scrutiny. At the Union level, it can also get around a Rajya Sabha where the government lacks a majority. This hurts bicameralism (a legislature with two Houses).

• A gap between the ruling and practice:

• The Court has twice called re-promulgation a fraud, in 1986 and 2017.
• Yet ordinances were still re-issued: Land Acquisition (2015), Enemy Property (five times, 2016-17), and Kerala University of Digital Sciences (five times) [2].

• States issue many ordinances, such as 81 in Kerala in 2020 [2]. So state-level checks matter as much as Union ones.

• Reforms building on D.C. Wadhwa:

• Allow re-promulgation only once.
• Require a written statement of the urgency behind each ordinance.
• Set a time limit for bringing a replacement Bill.
• Stop proroguing a House only to make room for re-issue.
• The ordinance power is still a needed safety valve. The issue is how often and why it is used, not whether it should exist.

Related concepts

• Ordinance-making power of the President
• Krishna Kumar Singh case

Read more

• The ordinance-making power