SC extends judicial review powers

cropped-india-supreme-court-new-delhiIn 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 legislature and promulgate an ordinance.


Important observations made by the court

SC on Judiciary

  • 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. 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 scrutinize 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 defeats the constitutional scheme under which a limited power to frame ordinances has been conferred on the President and the 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

ordinance-raj

  • 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.
  • 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.

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