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: Read the question.
We must find the case in which the Supreme Court called the repeated re-promulgation of Ordinances, without placing them before the Legislature, a fraud on the Constitution.

Step 2: Understand Ordinances.
The President and Governors can issue Ordinances when the Legislature is not in session and urgent action is needed. This power is meant to be temporary and exceptional.

Step 3: Understand re-promulgation.
An Ordinance normally lapses after a set time unless the Legislature approves it. Some governments simply re-issued the same Ordinance again and again without ever placing it before the Legislature. This is re-promulgation.

Step 4: Recall the landmark case.
In D.C. Wadhwa v. State of Bihar (1987), the State of Bihar had re-issued Ordinances for many years. The Supreme Court held that this repeated re-promulgation bypassed the legislative process and called it a fraud on the Constitution.

Step 5: Check the other options.
R.C. Cooper dealt with bank nationalisation. Shamsher Singh dealt with the exercise of executive power. Krishna Kumar Singh (2017) discussed Ordinances later but is not the case that first used the phrase fraud on the Constitution for re-promulgation.

Step 6: Conclude.
So the correct answer is D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.
\[ \boxed{\text{D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579}} \]

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 D

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