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

The ordinance power exists so that urgent laws can be made when the legislature is not sitting, and it is meant to lapse once the legislature is back in session and either approves, amends or rejects it, that safeguard is what keeps the power from swallowing the ordinary law-making process.

In Bihar, this safeguard was hollowed out in practice. Rather than placing Ordinances before the Assembly, the state government simply let one Ordinance expire and immediately issued a fresh one covering the same ground, sometimes for the same subject over many years, so that the Assembly was never actually asked to debate or vote on the law.

When this pattern reached the Supreme Court in D.C. Wadhwa v. State of Bihar, the Court looked past the form of each individual Ordinance and looked at the practice as a whole. It held that using the Ordinance power as a permanent substitute for legislation, rather than as a stop-gap measure, defeated the constitutional design and described it in strong terms as a fraud on the Constitution.

None of the other cases fit this description. Shamsher Singh concerns the President and Governor acting on advice, R.C. Cooper concerns bank nationalisation, and Krishna Kumar Singh, though it also discusses Ordinances, dealt with the consequences of an Ordinance lapsing rather than coining this particular description of repeated re-promulgation.

The case that gave us this phrase, in this exact context, is D.C. Wadhwa v. State of Bihar.
\[ \boxed{\text{D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579}} \]

Answer 2

A quick way to place each of these cases is to recall what each one is actually remembered for in constitutional law, and then see which memory matches the description in the question.

Option (A): Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, is remembered as the case on gubernatorial and presidential discretion, holding that these constitutional heads generally act on ministerial advice. It carries no connection to Ordinances or their repeated issue.
Option (B): Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, is remembered for holding that Ordinances do not automatically create irreversible rights once they lapse and for subjecting the satisfaction behind an Ordinance to judicial review. It is a significant Ordinance-related case, but a different one from the case that coined the exact phrase asked about here.
Option (C): D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579, is remembered precisely for the facts described in the question, the Bihar government's practice of re-promulgating the same Ordinances repeatedly instead of placing them before the legislature, which the Supreme Court struck down as a fraud on the Constitution.
Option (D): R.C. Cooper v. Union of India, AIR 1970 SC 564, is remembered as the bank nationalisation case, dealing with the right to property and compensation on nationalisation, a subject matter entirely apart from repeated Ordinance-making.

Matching the fact pattern in the question to what each case is known for points only to option (C).

Therefore, the correct answer is D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.

Answer 3

A quick way to place each of these cases is to recall what each one is actually remembered for in constitutional law, and then see which memory matches the description in the question.

Option (A): Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, is remembered as the case on gubernatorial and presidential discretion, holding that these constitutional heads generally act on ministerial advice. It carries no connection to Ordinances or their repeated issue.
Option (B): Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, is remembered for holding that Ordinances do not automatically create irreversible rights once they lapse and for subjecting the satisfaction behind an Ordinance to judicial review. It is a significant Ordinance-related case, but a different one from the case that coined the exact phrase asked about here.
Option (C): D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579, is remembered precisely for the facts described in the question, the Bihar government's practice of re-promulgating the same Ordinances repeatedly instead of placing them before the legislature, which the Supreme Court struck down as a fraud on the Constitution.
Option (D): R.C. Cooper v. Union of India, AIR 1970 SC 564, is remembered as the bank nationalisation case, dealing with the right to property and compensation on nationalisation, a subject matter entirely apart from repeated Ordinance-making.

Matching the fact pattern in the question to what each case is known for points only to option (C).

Therefore, the correct answer is 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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