Judiciary: India (powers, functions)
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Power of judicial review
On ordinances
The Hindu, January 3, 2017
Krishnadas Rajagopal
SC widens boundaries of judicial review of ordinance
Apex court will scrutinise whether satisfaction to promulgate ordinance was based on relevant material or spurred by an oblique motive
In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court widened the boundaries of judicial review to the extent that it can now examine whether the President or the Governor was spurred by an “oblique motive” to bypass the Legislature and promulgate an ordinance.
In case the apex court concludes that the President or the Governor was influenced by ulterior motives to promulgate the ordinance, such an act by the two constitutional authorities would amount to a fraud on their powers, the apex court held on Monday.
The satisfaction
“The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review,” Justice D.Y. Chandrachud wrote in a common judgment with Justices S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageshwara Rao.
Justice Chandrachud observed that 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 or was actuated by an oblique motive.”
The seminal question
The seminal question that came up in reference before the seven-judge Constitution Bench led by Chief Justice of India T.S. Thakur 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 High Court of Patna 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.
Confirming the High Court’s view, Justice Chandrachud, supported by Chief Justice Thakur in a separate judgment, held that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.”
Mandatory obligation
“The requirement of laying an ordinance before Parliament or the State Legislature is a mandatory constitutional obligation cast upon the government,” Justice Chandrachud held in the common judgment.
See also
Supreme Court: India (mainly SC's rulings)
Supreme Court, India: Administrative issues
Supreme Court: India: Chief Justices
Supreme Court: India: Sitting judges
Judicial appointments, senior: India mainly the Collegium debate
Judiciary: India (powers, functions)
