The Supreme Court held on Monday that re-promulgation of ordinances without being placed before the legislature was constitutionally impermissible as it amounted to bypassing the legislative body which was the primary source of lawmaking authority in a parliamentary democracy.
A seven-judge constitution bench held that government’s decision to bring ordinance can be reviewed by judiciary and said that it was obligatory on the government to place the ordinance before the legislative body for its approval. Failure of governments, at the Centre as well as states, to place ordinances before Parliament and state legislatures would itself constitute a fraud on the Constitution.
The majority verdict, by Justices AK Goel, UU Lalit, DY Chandrachud and L Nageswara Rao, held that “re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and governors”.
“The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law-givers under the Constitution. Open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through lawmaking,” it said.
Chief Justice TS Thakur, who was heading the bench, also agreed with majority verdict on the issue but differed on one aspect.
“I am in complete agreement with the view expressed by my esteemed brother Chandrachud, that repeated re-promulgation 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 Chief Justice, however, questioned whether it is mandatory for the government to place the ordinance before legislative body saying that the matter should be examined in a separate proceeding.
Justice Madan B Lokur, also differed stating, “There could be situations, though very rare, when re-promulgation is necessary.”
The court said that apex court’s `hope and trust’ that lawmaking through re-promulgated ordinances would not become the norm had been belied by successive governments.
Courtesy: Times of India