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SC says re-promulgation of an ordinance not immune from judicial review

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New Delhi: In an observation of far reaching consequences, Supreme Court said that re-promulgation of an ordinance is a fraud on the constitution. While the present case might not be directly related to Narendra Modi led NDA government, it may strengthen the voice against its use of ordinance route.

The court went on to add that even the satisfaction of the President or the Governor of a particular state to promulgate an ordinance may be a fit case for judicial review.

The tone and the tenor of the apex court observation was rather very tough. Noting that ordinance has the same force as law passed by the legislature, a seven judge constitution bench headed by Chief Justice T.S.Thakur, by a majority of 6-1 said that laying of an ordinance before the parliament or state legislature, as the case may be, is mandatory.


The seven member bench of the apex court said that the ordinance must be presented before the parliament for approval or before state legislature if it is related to a state.
The majority judgment was delivered by Justice D.Y. Chandrachud. Justice S.A. Bobde, Justice Adarsh Kumar Goel, Justice Uday Umesh Lalit, and Justice L. Nageswara Rao supported this view, while Chief Justice Thakur gave a concurring judgment with separate reasoning. Holding that re-promulgation of an ordinance is a fraud on the constitution, the majority judgment said that the satisfaction of the President or that of the Governor was not immune from judicial review, if the satisfaction had an oblique motive.

The observation is going to reignite the debate surrounding the promulgation and re-preomulgation of ordinance. The court also made it clear that no legal rights would get conferred on the beneficiaries of the ordinance after its expiry or its re-promulgation. However, Justice Madan B. Lokur, in his dissenting judgment, said that there may be several exigencies for not placing the ordinance before the parliament or the state legislature and the same per se can’t be said to be illegal. Chief Justice Thakur said that the question on the tabling of the ordinance before the parliament or state legislatures was not before the court for adjudication and the left the same open for future adjudication.

The entire case is rooted in the appointment of teachers by the Bihar government by taking ordinance route. The said ordinance was re-promulgated about four times. However, the successor government refused to re-promulgate the ordinance and thus the appointment of teachers made by way of an ordinance got ejected. The questions examined by the top court constitution bench was on the ordinance making power of the government and was it mandatory to place the ordinance before the legislature within six weeks of its very next session. Another question for adjudication was if any right was conferred on the people who were the beneficiaries of the ordinance.

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