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Ordinances not immune from judicial review: SC

Supreme Court says re-promulgation of an ordinance is a fraud on the Constitution

Published: 03rd January 2017 04:43 AM  |   Last Updated: 03rd January 2017 07:01 AM   |  A+A-

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By Express News Service

NEW DELHI: The Supreme Court on Monday made it clear that re-promulgation of an ordinance was like a fraud on the Constitution and the satisfaction of the President or the Governor to promulgate an ordinance was not immune from judicial review.

A seven judge constitution bench headed by Chief Justice T S Thakur by a majority ruling of 6:1 said that, “laying of an ordinance before the parliament or state legislature, as the case may be, is mandatory.” The court also held that the satisfaction of the President under Article 123 and of the Governor under Article 213 while issuing ordinances is not immune from judicial review.
The bench also held that the question as to whether rights, privileges, obligations and liabilities would survive an ordinance which has ceased to operate must be determined as a matter of construction. The majority judgment, delivered by Justice DY Chandrachud, said that failure to place the ordinance before parliament or State legislature is a serious constitutional fraction. Justice SA 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 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 ruling came on the case wherein the appointment of teachers by the Bihar government by taking ordinance route and it was re-promulgated about four times. However, the successor government refused to re-promulgate the ordinance and thus the appointment of teachers got rejected.
The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution, it said.



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