The Supreme Court on 2 January 2017 passed a ruling stating that re-promulgation of an ordinance was a fraud on the Constitution and that the ordinances passed by the President and the State Governors by bypassing the legislature are not immune from judicial review.
The decision was taken by a constitution bench comprising seven justices headed by Chief Justice TS Thakur with a majority of 6-1. The bench stated that since an ordinance has the same force as a law passed by the legislature, it will now be mandatory to place it before the Parliament or the State legislature.
Justice DY Chandrachud, who delivered the majority judgement, stated that the failure in placing the ordinance before the Parliament and the state legislature would be taken as a serious constitutional violation. Apart from Justice CJ Thakur, all others including Justices SA Bobde, Uday Umesh Lalit, L. Nageswara Rao and Adarsh Kumar Goel agreed to the decision.
Justice Chandrachud stated that court would review whether the satisfaction of the President or the Governor to implement the ordinance was based on relevant material or was it influenced by any ulterior motive. The court also stated that no legal rights would be given to the beneficiaries of the ordinance after its expiry or withdrawal.
The ruling came in reference to a case that raised the constitutionality of seven successive re-promulgations of the Bihar Non-Government Sanskrit Schools Ordinance of 1989. The Bihar state government had approached the Supreme Court following Patna court’s verdict, which stated that repeated re-promulgation of the ordinances was unconstitutional. The same was confirmed by the Supreme Court.
However, another Justice, Madan B. Lokur challenged the verdict by saying that there may be several situations where re-promulgation of the ordinance would seem necessary so, the act cannot be wholly declared as unconstitutional.