SC extends judicial review powers
3rd January,17
In a blow to Ordinance Raj, a Constitution Bench of the Supreme Court has widened the boundaries of
judicial review to the extent that it can now examine whether the President or the State Governor
was spurred by an “oblique motive” to bypass the legislatu
legislature
re and promulgate an ordinance.
ordinance
Important observations made by the court:
The court has held that the satisfaction of the President under Article 123 and of the
Governor under Article 213 is not immune from judicial review
review. 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 respective powers.
The court also said that it 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 court also observed that it was obligatory for the government to place the ordinance before
the legislative body for its approval and non-placement of ordinances before the Parliament and
the State legislature would itself constitute a fraud on the constitution.
Besides, re-promulgation
ion defeats the constitutional scheme under which a limited power to
frame ordinances has been conferred on the President and the Governors
Governors. The danger of
re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state
legislatures which have been constituted as primary law givers under the Constitution
Background:
These observations were made by the court while dealing with the case related to 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 Patna High Court 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.
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In the Dr. D.C. Wadhwa versus State of Bihar case, the Constitution Bench of the Supreme Court
held that the Executive has no arbitrary right to promulgate ordinances. The apex court held that it is
the right of every citizen to insist that he should be governed by laws made in accordance with the
Constitution and not law made by the Executive in violation of the constitutional provisions.
What is Judicial review?
Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any
such law or order of the legislature and executive void, if it finds them in conflict the Constitution of
India.
To be looked in UPSC Exams Paper 2 Topic: Separation of powers between various organs dispute
redressal mechanisms and institutions.
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