Ordinance under review of SC
A Constitution Bench of the Supreme Court can now examine whether the President or the State Governor was spurred by an oblique motive to bypass the legislature and promulgate an ordinance.
The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review. The apex court would scrutinise whether the satisfaction of the President or the Governor to promulgate an ordinance was based on relevant material or whether it amounted to a fraud on power.
Issue discussed in the case
The seminal question that came up in reference before the seven-judge Constitution Bench dealt with the constitutionality of seven successive re-promulgations of the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance of 1989.
The State government had approached the Supreme Court after the Patna High Court declared that repeated re-promulgation of the ordinances was unconstitutional after relying on the D.C. Wadhwa judgment on the dos and don'ts of promulgation of ordinances by another Constitution Bench of the Supreme Court in 1986.
What is an ordinance
Ordinances are temporary laws that are promulgated by the President of India on the recommendation of the Union Council of Ministers .
They can only be issued when Parliament is not in session. They enable the Indian government to take immediate legislative action. Similarly, Governor can promulagate ordinace on recommendation State Council of Ministers.
D.C. Wadhwa Judgement
The Supreme Court in D. C. Wadhwa v. State of Bihar (1986) held that it is unconstitutional to repromulgate ordinances, unless in exceptional circumstances. Ordinances themselves are an exception, the Court noted. The primary authority to enact legislation is the legislature. It is only to tide over a temporary urgency that the executive resorts to an ordinance. But to repromulgate it is to circumvent the legislature’s primacy; it is an underhanded way of prolonging the life of an ordinance.