Under constitutional jurisprudence in India, repeated re-promulgation of Ordinances without placing them before the Legislature was described by the Supreme Court as a “fraud on the Constitution” in which decision?

Question

The concept of per se disqualification is unknown to the Constitution. Any decision as to the disqualification proceedings under the Tenth Schedule must be taken after following the due process of law and the principles of natural justice. A member incurs disqualification only after adjudication by the Speaker. The procedure for the adjudication of disqualification petitions is prescribed under the Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986. The MLAs facing disqualification retain the right to participate in the proceedings of the House and vote on resolutions. Article 189(2) of the Constitution provides that any proceedings of the House are not invalid even if it is subsequently discovered that persons who were not entitled to participate or vote or otherwise take part in the proceedings, did so. In Pratap Gouda Patil v. State of Karnataka and Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi, this Court observed that members should not be stopped from taking part in the proceedings of the House merely because disqualification proceedings were pending against them
Prior to the deletion of Paragraph 3 of the Tenth Schedule, the Speaker’s enquiry as to the existence of a split within a political party was limited to a prima facie determination for deciding the disqualification proceedings. As a result of the deletion of Paragraph 3, the authority of the Speaker to form even a prima facie opinion regarding a split within a political party has been removed. Upon the deletion of Paragraph 3, the only defence for disqualification proceedings under the Tenth Schedule are that of a merge under Paragraph 4. The Election Commission of India is the sole authority empowered to decide disputes between rival factions of a political party according to the provisions of the Symbols Order.
[Extracted from Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)]

Answer 1

Step 1: Understand the issue.
The Ordinance power under Articles 123 and 213 is meant for urgent situations when the legislature is not in session. It is not a way to bypass the legislature again and again.

Step 2: Identify the problem of re-promulgation.
Re-promulgation means re-issuing the same Ordinance over and over without placing it before the legislature. This avoids proper law-making and sidelines the elected house.

Step 3: Recall the case.
In D.C. Wadhwa v. State of Bihar, the Supreme Court condemned this practice. Bihar had kept re-promulgating Ordinances for years. The Court called it a fraud on the Constitution.

Step 4: Why this case fits.
D.C. Wadhwa is the seminal decision that coined the phrase fraud on the Constitution in the context of repeated re-promulgation. That exact phrase is the key link.

Step 5: Eliminate the others.
Krishna Kumar Singh (2017) later built on this and allowed judicial review of ordinances, but it did not coin the phrase. Shamsher Singh dealt with the President and Governor acting on aid and advice, and R.C. Cooper was the bank nationalisation case. None of these is the answer.

Step 6: Conclude.
The phrase fraud on the Constitution for repeated re-promulgation comes from D.C. Wadhwa.
\[ \boxed{\text{D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579}} \]

Under constitutional jurisprudence in India, repeated re-promulgation of Ordinances without placing them before the Legislature was described by the Supreme Court as a “fraud on the Constitution” in which decision?

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The Correct Option is C

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