# GURUDEVDATIA VKSSS MARYADIT AND ORS. "* v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [2001] 2 S.C.R. 654
- **Court:** Supreme Court of India
- **Decided:** 2001-03-22
- **Bench:** G.B. Patianaik, Umesh C. Banerjee, B.N. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurudevdatia-vksss-maryadit-and-ors-v-state-of-maharashtra-and-ors-17872
- **Pages:** 23

## Headnote

Maharashtra Co-operative Societies Act, 1960-Section 27(3)-
~·
Maharashtra Cooperative Societies (Second Amendment) Act, 2000-Proviso
added on 23.8.2000 providing for a restricted list of voters'-High Court
c
dismissed writ petition as.a voter's list had already been prepared-Later,
Ordinance promulgated, retrospectively from 23.8.2000, clarifying the posilion that the amendment applies to new member societies only-On appeal
Held, language used in classificatory ordinance is clear and no outside aid
is required to interpret the same-Legislative malice is beyond the pale uf
D
jurisdiction of law courts when no constitutional invalidity is contendedOrdinance may be totally irrelevant in the present context, but if executive
thought if necessary it cannot be described otherwise-Impugned order
upheld along with constitutionality of the ordinance-Constitution of India,
1950-Articles 123, 213 and 174.
E
Administrative law-Doctrine of separation of powers-Promulgation
j
of ordinance-Judicial reluctance noticed while inquii:ing about the status of a
statute-However, judiciary does not stand impotent before an obvious instance
of exercise of a manifestly unauthorised power-If constitutional safeguards
are not infringed, neither cw1 the ordinance nor the motive for such promulgation could be exaMined.
F
Constitution of India-Articles 213 and 174-Promulgation of Olfli-
-J..
nance by Govemor-Si@icient Constitutional saf1gualfl and rigours 1xistPower of legislation crmferred upon the Govtmor only when a satiefaction is
recolfled that such emergent circumstances exist-Powtr of the Executive is
G
only an emergent power to mut an emergency.
/nterpretaJion of StaJutes-Objects and Reasons-No necessity to lay
much emphasis as they mer11ly note the reasons for introducing an orrlinance_.( ...
TMy need not N looked into as they are not by itself a necessary aid to
construction but aid to construction if necessary-TMy may N looked into to
H
(lSsess the intent of the legislature only in the event of a corifusion.
654
GURUDEVDATIA VKSSS MARYADIT v. STATE
655
~ ..,.
Appellants demanded a restrictive list of voters under the
A
Maharashtra Cooperative Societies (Second Amendment) Act, 2000 which
came into force on 23.8.2000 and introduced as proviso to Section 27 (3) of
the Maharashtra Cooperative Societies Act, 1960 for the same. High Court
dismissed their writ petition as the voters list had already been finalised
before the said amendment. The Governor of the State promulgated an
B
Ordinance retrospectively effective from 23.8.2000 making it clear that
societies and the members who had already obtained membership before
the new proviso was added would not be affected. Appellants challenged
this Ordinance and the order of the High Court before this Court.
Appellants contended that promulgation of the Ordinance was c
an act of legislative malice to scuttle a free and fair election, that
the objects and reasons of the Ordinance mentioned that the newly
..
added proviso had created a confusion while preparing voters list, which
negates the basis of the High Court judgment, and that as the ordinance
was merely clarificatory, no emergent situation for its promulgation
D
existed.
Dismissing the appeal, the Court
HELD: 1. Doctrine of separation of powers have been the basis tenet
- l
of our constitutional framework since in terms therewith each of the three
E
organs of the State viz., the judiciary, executive and the legislature would
...
be operating on its own spheres and fields. Judicial reluctance have been
noticed and it is now well-settled both in this country and United States of
America as well as in United Kingdom that certainty and finality about the
status of a statute, contribute to judicial reluctance to Inquire whether it
F
compiled with all requisite formalities, but the decisions are not very
uncommon which have laid down In no uncertain terms that there Is no
blanket rule ohuch judicial reluctance; neither the 'judiciary would stand
Impoten

## Text

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GURUDEVDATIA VKSSS MARYADIT AND ORS.
"*- -
v.
STATE OF MAHARASHTRA AND ORS.
MARCH 22, 2001
B
[G.B. PATIANAIK, UMESH C. BANERJEE AND B.N. AGRAWAL, JJ.]
Maharashtra Co-operative Societies Act, 1960-Section 27(3)-
~·
Maharashtra Cooperative Societies (Second Amendment) Act, 2000-Proviso
added on 23.8.2000 providing for a restricted list of voters'-High Court
c
dismissed writ petition as.a voter's list had already been prepared-Later,
Ordinance promulgated, retrospectively from 23.8.2000, clarifying the posilion that the amendment applies to new member societies only-On appeal
Held, language used in classificatory ordinance is clear and no outside aid
is required to interpret the same-Legislative malice is beyond the pale uf
D
jurisdiction of law courts when no constitutional invalidity is contendedOrdinance may be totally irrelevant in the present context, but if executive
thought if necessary it cannot be described otherwise-Impugned order
upheld along with constitutionality of the ordinance-Constitution of India,
1950-Articles 123, 213 and 174.
E
Administrative law-Doctrine of separation of powers-Promulgation
j
of ordinance-Judicial reluctance noticed while inquii:ing about the status of a
statute-However, judiciary does not stand impotent before an obvious instance
of exercise of a manifestly unauthorised power-If constitutional safeguards
are not infringed, neither cw1 the ordinance nor the motive for such promulgation could be exaMined.
F
Constitution of India-Articles 213 and 174-Promulgation of Olfli-
-J..
nance by Govemor-Si@icient Constitutional saf1gualfl and rigours 1xistPower of legislation crmferred upon the Govtmor only when a satiefaction is
recolfled that such emergent circumstances exist-Powtr of the Executive is
G
only an emergent power to mut an emergency.
/nterpretaJion of StaJutes-Objects and Reasons-No necessity to lay
much emphasis as they mer11ly note the reasons for introducing an orrlinance_.( ...
TMy need not N looked into as they are not by itself a necessary aid to
construction but aid to construction if necessary-TMy may N looked into to
H
(lSsess the intent of the legislature only in the event of a corifusion.
654
GURUDEVDATIA VKSSS MARYADIT v. STATE
655
~ ..,.
Appellants demanded a restrictive list of voters under the
A
Maharashtra Cooperative Societies (Second Amendment) Act, 2000 which
came into force on 23.8.2000 and introduced as proviso to Section 27 (3) of
the Maharashtra Cooperative Societies Act, 1960 for the same. High Court
dismissed their writ petition as the voters list had already been finalised
before the said amendment. The Governor of the State promulgated an
B
Ordinance retrospectively effective from 23.8.2000 making it clear that
societies and the members who had already obtained membership before
the new proviso was added would not be affected. Appellants challenged
this Ordinance and the order of the High Court before this Court.
Appellants contended that promulgation of the Ordinance was c
an act of legislative malice to scuttle a free and fair election, that
the objects and reasons of the Ordinance mentioned that the newly
..
added proviso had created a confusion while preparing voters list, which
negates the basis of the High Court judgment, and that as the ordinance
was merely clarificatory, no emergent situation for its promulgation
D
existed.
Dismissing the appeal, the Court
HELD: 1. Doctrine of separation of powers have been the basis tenet
- l
of our constitutional framework since in terms therewith each of the three
E
organs of the State viz., the judiciary, executive and the legislature would
...
be operating on its own spheres and fields. Judicial reluctance have been
noticed and it is now well-settled both in this country and United States of
America as well as in United Kingdom that certainty and finality about the
status of a statute, contribute to judicial reluctance to Inquire whether it
F
compiled with all requisite formalities, but the decisions are not very
uncommon which have laid down In no uncertain terms that there Is no
blanket rule ohuch judicial reluctance; neither the 'judiciary would stand
Impotent' before an obvious Instance of exercise of a manifestly unauthorlscd power. [662-G·H; 663-A·B)
G
Indira Nthru Gandhi v. Raj Narain, (1!175) Suppl. SCC 1; relied on.
...
)._
Charlts W. Baktr d al v, Joe C. Caar, 369 US 186 7 L. ed. : 2d. 663
and Livanagt and Othtrs v. Rtginam, (1966) 1 ALL ER 650, referred to.
2. The law remains clarlned that judicial reluctance cannot be faulted
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[2001] 2 S.C.R.
in any way unless an element of constitutionality of the legislation comes up
for consideration. The issue of political question pertains however, to the
judicial review oflegislation. The political question doctrine has to he treated
to be a tool for maintenance of government order but there is no blanket rule
or judicial reluctance since the question arises as to whether the case presents
the political question and for this purpose, facts of each case shall have to be
considered In Its proper perspective. Promulgation of an Ordinance under
Articles 123 and 213 of the Constitution is not an administra tiveor executive
action but being legislative in nature, it is subject only to constitutional limi·
tations applicable to an ordinary statute. The Ordinance, if, does not infringe the constitutional safeguards, cannot be examined nor the motive for
such a promulgation can he in question. [666-F-H; 667·A·B]
T. Venkata Reddy and Others v. State of Andhra Pradesh, [1985] 3 SCC
198, followed.
A.K. Roy v. Union of India, [1982] 1SCC271; State of Gujarat & Anr. v.
D
Raman Lal Keshav Lal Sani and Ors., [1983] 2 SCC 33; D.C. Wadhwa v. State
of Bihar, [1987] 1 SCC 378; and K. Nagaraj and Others v. State of Andhra
Pradesh and Another, [1985] 1 SCC 523, relied on.
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3. Legislative malice is beyond the pale of jurisdiction of the law
courts, especially when there no constitutional invalidity is contended, the
question of interference with the matter pertaining to the proviso or even
the Ordinance does not and cannot arise. The Ordinance may be ascribed
to be totally irrelevant in the present context but if the Executive in its
wisdom thought it f:t to promulgate such an Ordinance, it cannot describe
it as otherwise not r~quired even as and by way of a clarification since the
administrative expediency permitted the legislative function on to the Ex·
ecutive. However, the High Court did not have the opportunity to consider
the Ordinance, which stood promulgated later on and during the pendency
of this appeal. (667-G-H; 668·A·Bl
1
4. Article 213 is to be read along with Article 174 which enjoins that
the legislature shall meet at least twice in a year maintaining the demo·
cratic flavour of the Constitution with three separate organs of the State
functioning within its restrictive sphere. There is existing sufficient consti·
tutional safeguard and rigour evident from a plain reading of the language
used. Article 213 authorises promulgation of an Ordinance and confers a
power of legislation on to the Governor only in the event of recording a
....
GURUDEVDATIA VKSSS MARYADIT v. STATE
657
satisfaction that circumstances exist which render it necessary for him to
take immediate action and the Ordinance so promulgated can he laid
before the Legislative Assembly of the State at the expiry or six weeks from
the re-assembly of the Legislature. Therefore, the power of the Executive is
only an emergent power to meet the emergency. [ 669-C-F]
5.1. There is no necessity to lay such an emphasis on the statement of
objects and reasons. They cannot but seem to note the reasons for introduction of the promulgation of such an Ordinance. Further, after introduction of the Bill and during the debates thereon before the Parliament, if a
particular provision is inserted by reason or such a debate, question of
indication of any object in the objects and reasons or the Bill does not and
cannot arise. They need to be looked into, not as a necessary aid but as an
aid to construction only if necessary. They may be looked into to assess the
intent of the legislature in the event of a confusion. This is not an indispen·
sable requirement but when faced with an imperative need to appreciate
the proper intent of the Legislature, statement may be looked into but not
otherwise. (670-C-D; H; 671-A-B]
5.2. The Legislature advisedly used the expression "new members"
in the proviso to Section 27(3), for which the clarificatory Ordinance was
promulgated. The legislaiure has used the expression 'new' • obviously
with an intent to ascribe something other than existing members and this
additional requirement by reason of an additional appendage by way of a
statutory amendment must be stated to be that indicative of the intent and
to convey a definite meaning. The word 'new' in common English parlance
cannot hut mean something which was not existing and thus a society
becoming a member on or after 23rd August, 2000 and not prior thereto; it
cannot possibly apply to existing members but only new members after the
amendment. (671-C-D; G-H; 671-A]
D.C. Wadhwa v. State of Bihar, (1987] 1 SCC 378; Aswini Kumar Chose
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and Another v. Arabinda Bose and Another, A.I.R. (1952) SC 369 and
Shashikant Laxman Kale and Anr. v. Union of India & Anr., A.I.R. (1990) SC
G
2114, relied on.
CIC Insurance limited v. BankstQWn Football Club Ltd., (1997) 187
CLR p. 384; and New Castle City Council v. GIO General limited, (1998) 72
AL.JR 97 (Aust.) referred to.
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[2001] 2 S.C.R.
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6. The language used in the Ordinance is clear, categorical and on-
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equivocal, no outside aid is required or is permissible for interpreting the
proviso to the Section by the AmendingActof2000. It is a cardinal principle
ofinterpretation of statute that the words of a statute must be understood in
their natural, ordinary or popular sense and construed according to their
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grammatical meaning, unless such construction leads to some absurdity or
unless there is something in the context or in the object or the statute to
suggest to the contrary. The golden rule is that the words of a statute must
~-
prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of
c
the consequences. The words themselves best declare the intention of the law
giver. The Courts have adhered to the principle that efforts should be made
to give meaning to each and every word used hy the legislature and it is not
a sound principle of construction to brush aside words in a statute as being
inapposite surpluses, if they can have a proper application in circumstances
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conceivable within the contemplation of the statute. The expression "any
new member society" occurring in the proviso to Section 27(3) when construed, it conveys the only meaning th a tit refers to the societies to be formed
thereafter and not of those societies which have already become member
societies ofthe federal society. [675-C-H; 676-A]
E
7. The judgment of the High Court does not suffer from any inliri
mity. The Ordinance was promulgated to clear any doubt in the matter of
interpreting the proviso. The second proviso inserted by the Ordinance
removed any doubt or controversy as it has been indicated there in that the
first proviso will not apply to the member society which has invested any
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part or Its fund In the share of the federal society before the commence·
ment of the Maharashtra Co-operative Societies (Amendment) Act, 2000
doted 20th August, 2000. The aforesaid Ordinance also has been given a
retrospective effect from 23rd A 11g11st, 2000. Therefore, the so-called pro·
hlbltlon contained In the first proviso to Section 27(3) will not apply to all
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those socletloo which have already become members or the federal society
prior to 23rd August, 2000. [676·B·D]
CIVIl..APPELLATE JURISDICTION: Civil Appeal No. 2298 of2001.
~ -
From the Judgment and Order dated 4.12.2000 of the Bombay High
H
Court in W.P. No. 6637 of 2000.
GURUDEVDATTA VKSSS MARYADIT v. STATE [BANERJEE, J.]
659
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Soli J. Sorabjee, Attorney General, K.N. Rawat, Additional Solicitor
A
General, VA. Bobde, VA. Mohta, Bhimrao Naik, Ashok Desai, A. Y. Sakhare,
P.N. Misra, A.A. Kumbhakoni, Uday Umesh Lalit, S.V Deshpande, Shivaji
M. Jadhav, T. Raja and Sunil Kr. Verma for the appearing panies.
The Judgment of the Court was delivered by
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BANERJEE, J. Leave granted.
'f
Urgency of the situation has prompted this Court to dispose of the
present Special Leave Petition under Article 136 of the Constitution even
at the stage of admission: Urgency being initiation of election process of
Kolhapur District Central Co-operative Bank in the State of Maharashtra. c
Incidentally, Bombay High Court has negatived the petitioners' contention of
restrictive list of voters in terms of the proviso to Section 27 (3) as
~
added by the amendment to the Maharashtra Co-operative Societies Act, 1960
- the primary reason being - the entire election programme, including the list
of voters stands finalised on June 30, 2000 and the amendment by way of
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addition to the proviso was effected on 23rd August, 2000: The introduction
oi the amended proviso being effected subsequent to the finalisation of
the voters list, the High Court concluded that basically, the inclusion of
the Societies which were eligible on 30th June, 2000 could not be faulted
... r
on the basis of the amendment which was brought into force subsequently
and they cannot be denied the right to vote and hence the Appeal before this
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Court.
Before adverting to the submissions advanced on the score as above,
one factual clement ought to be noticed at this juncture to wit: promulgation
of an Ordinance being Maharashtra Ordinance No. X of 2001 by the
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Governor of the State on 27.02.2001 during the short pendcncy of this
appeal.
We shall be adverting to the same shortly in detail but before so doing
relevant provisions of the Maharashtra Co-operative Societies Act, 1960
[Section 27(3)) together with the amendment to the proviso as effected on
G
23rd August, 2000 ought to be noticed immediately herein below:·
- .a.
Section 27(3):
"A society which has invested any part of its funds in the shares of
any federal society, may appoint one of its members to vote on its
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660
SUPREME COURT REPORTS
[2001] 2 S.C.R.
behalf in ·the affairs of that federal society and accordingly such
member shall have the right to vote on behalf of the society"
Proviso to the Section however reads as below:~
"Provided that, any new member society of a federal society shall be
eligible to vote in the affairs of that federal society only after the
completion of the period of three years from the date of its investing
any part of its fund in the shares of such federal society;
provided further that, where the election is to a reserved seat under
Section 73-B, no person shall have more than one vote."
The Ordinance as promulgated by the Co-operation and Textile Department of the Government of Maharashtra and as published in the Government
Gazette in terms of Clause Ill of Article 348 of the Constitution being
Maharashtra Ordinance X of 2001 may also be noticed at this juncture only
as the issue centres round th~ Ordinance as well and the relevant extract of
the same, however, is set out as below:-
"!.Short title and Commencement - (1) This Ordinance may be called
the Maharashtra Co-operative Societies (Second Amendment) Ordinance, 200 !.
(2) It shall be deemed to have come into force on the 23rd August,
2000.
2.
Amendment of Section 27 of Mah.XXIV of 1961 - In Section
27 of the Maharashtra Co-operative Societies Act, 1960-
(a)
in sub-section (3)-
(i)
after the first proviso, the following proviso shall be inserted as
the second proviso, namely:-
"Provided further that nothing in the first proviso shall apply to the
member society, which has invested any part of its fund in the shares
of the federal society, before the commencement of the Maharashtra
Co-operative Societies (Amendment) Act, 2000."
(ii) In the existing second proviso, for the words "provided further
that" the words "provided also that" shall be substituted:
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GURUDEVDAITA VKSSS MARYADIT v. STATE [BANERJEE, J.]
661
(b) to sub-section (3A), the following proviso shall be added, namely,
A
"Provided that, nothing in sub-section (3A) shall apply to an individual member of a society, who has been emolled as a member of
that society, before the commencement of the Maharashtra Cooperative Societies (Amendment) Act, 2000."
Mr. V.A. Bobde, the learned Senior Counsel in support of the appeal
with his usual eloquence introduced the concept of legislative malice in the
matter of promulgation of the Ordinance. 'Malice' in common acceptation,
admittedly, means and implies 'spite' or 'ill will' and it is having regard to
the common English parlance of the word 'malice' that Mr. Bobde contended
that promulgation of the Ordinance is an abuse of the legislative power and
process amounting to a fraudulent user thereof and thus the malice.
It is in this context Mr. Bobde placed very strong reliance on the
statement of objects and reasons for promulgation of the same. In the normal
course of events we would not have delved into the same in detail as is being
done herein below, but for its significance in the matter under consideration
and elaborate submissions thereon, the statement of objects and reasons for
promulgation of the Ordinance is noticed herein below:-
"By inserting proviso to sub-section (3) of Section 27 of the
Maharashtra Co-operative Societies Act, 1960, by Maharashtra Act
No.XL of 2000, provision has been made to give voting rights only
to such member societies, which have completed three years from the
date of their admission as members, in the election of Federal Society.
Similarly, provision has also been made in sL.b-section (3A) of Section
27, to give voting rights to only such individual members who have
completed two years from the date of admission as members, in the
election of a society. After these provisions came into effect, election
programmes of some societies in the State were declared and while
preparing the voters lists, there was some confusion amongst the cooperative as to whether names of the societies and individuals who
were already admitted as members before coming into force of the
said Act, that is, before the 23rd August, 2000, could be included in
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the voters list. Some societies have even filed Writ Petitions in the
matter in the Hon'ble High Court and matters have reached to the
Supreme Court. In these cases, the Government has taken a stand
before the Supreme Court that the amended provisions would not
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[2001) 2 S.C.R
affect the voting rights of member societies or members who had
already become members prior to the said amendment. Therefore,
with a view to leave no room for doubt the Government considers it
necessary to clarify, by making a specific clarificatory provision in
the Act that the societies and the members who have already obtained
the membership before the 23rd August, 2000, that is, the date of
coming into force of the said amendment Act.
2. As both Houses of the State Legislature are not in session and the
,._1
Governor of Maharashtra is satisfied that the circumstances exist
Y
which render it necessary for him to take immediate action further to
amend the Maharashtra Co-operative Societies Act, 1960 (Mah.
XXIV of 1961), for the purpose of aforesaid, this Ordinance is
promulgated."
On an analysis of the statement as noticed in the preceding paragraph,
Mr. Bobde contended that the whole pmpose of promulgation of the Ordinance has been purposive and to scruttle a free and fair election. It has been
contended that legislation cannot be a tool to satisfy a political end and the
conclusion is irresistible in the contextual facts on this connt only if English
words are given ordinary common English parlance. The factum of having
a confusion while preparing the voters list as stated in the statement of objects
and reasons, negates the basis of the High Court judgment to wit: the voter
list stands prepared and concluded by 30th June, 2000. Mr. Bobde contended
that by reason of so-called confusion (as noticed above), the Ordinance stands
promulgated as the legislature was not in session by way of a clarificatory
order. The submissions apparently, apmt from being attractive seems ·to be
of some consequence rendering it an obligation for the Court to delve into
the issue in slightly more greater detaiL
The tenability of the submissions as above, however, would be discussed later in this judgment, but before so doing, we need to recapitulate
the law as regards the jurisdiction of the court to assess the question of
justiciability of the legislation by one of the wings of the Constitution.
Doctrine of separation of powers have been the basic tenet of our constitntional framework since in terms therewith each of the three mgans of the State
viz., the judiciary, executive and the legislature would be operating on its own
spheres and fields. It is to be noted that there has been a catena of cases
wherein this judicial reluctance have been noticed and it is now well-settled
both in this conntry and United States of America as well as in United
GURUDEVDATIA VKSSS MARYADIT v. STATE [BANERJEE, J.]
663
Kingdom that certainty and finality about the status of a statute, contribute
A
~.
to judicial reluctance to inquire whether it complied with all requisite
formalities, but the decisions are not very uncommon which have laid down
in no uncertain terms that there is no blanket rule of such a judicial reluctance
neither the 'judiciary would stand impotent' before an obvious instance of
exercise of a manifestly unauthorised power: The concept of political question
B
doctrine, being basically of American origin, cannot possibly be confidently
reached until the matter is considered with special care, upon bestowing
,._ '>(
proper attention and in the event of a conclusion which lends credence to the
question raised viz., as to whether the question is a political question or not,
Judicial inclination to interfere cannot be faulted though however not otherc
wise. See in this context Charles W Baker et al: v. Joe C. Caar, (369 US
186: 7 L.cd.:2d.663). This however, needs to be emphasised that the same
stands subject to the facts of each case and it is almost a well-neigh
impossibility to even adumbrate as to what will and what will not constitute
judicial reluctance to interfere, except however, the field which can be
described to be as ad hominem nor even any attempt to draw the line since
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each case is to be decided on the given facts. In this context the decision of
the Privy Council in the case of liyanage and Others v. Reginam, (1966) 1
All ER 650, ought also to be noticed wherein, Their Lordships of the Privy
Council introduced the concept of legislation ad hominem and struck down
a legislation by reason therefor. Lord Pearce in his inimitable style observed
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as below:
"Do the Acts of 1962, however, otherwise than in respect of the
Minister's nomination, usurp or infringe that power? It goes without
saying that the legislature may legislature, for the generality of its
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subjects, by the creation of crimes and penalties or by enacting rules
relating to evidence. But the Acts of 1962 had no such general
intention. They were clearly aimed at particular known individuals
who had been named in a White Paper and were in prison awaiting
their fate. The fact that the learned judges declined to convict some
of the prisoners is not to the point. That the alterations in the law were
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not intended for the generality of the citizens or designed as any
improvement of the general law, is shown by the fact that the effect
of those alterations was to be limited to the participants in the January
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coup and that after these had been dealt with by the judges, the law
should revert to its normal state.
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Such a lack of generality, however, in criminal legislation need
not, of itself, involve the judicial function, and their lordships are not
prepared to hold that every enactment in this field which can be
described as ad hominem and ex post facto must inevitably usurp or
infringe the judicial power. Nor do they find it necessary to attempt
the almost impossible task of tracing where the line is to be.drawn
between what will and what will not constitute such an interference.
Each case must be decided in the light of its own facts and
circumstances, including the true purpose of the legislation, the
situation to which it was directed, the existence (where several
enactments are impugned) of a common design, and the extent to
which the legislation affects,by way of direction or restriction, the
discretion or judgment of the judiciary in specific proceedings. It is
therefore necessary to consider more close! y the nature of the
legislation challenged in this appeal."
The observations of Lord Pearce finds approval of this Court in the case
of Indira Nehru Gandhi v. Raj Narain, (1975] Suppl SCC I.
Mr. Bobde contended that the Ordinance in question is clearly a
legislation ad-hominem being directed solely to the control of voting right in
respect of the affairs of the most cash- riched Federal Cooperative Bank in
Maharashtra. Mr. Bobde contended that Kolhapur Bank is most cash-riched
Co-operative Bank in the State of Maharashtra with an annual turnover of
Rs.1500 crores: Its financing is around 1200 crores including 600 crores of
sugar co-operative society and because of the sugar factories, Kolhapur
District has maximum concentration on Co-operative societies amongst all the
districts of the State of Maharashtra.
It is at this juncture some decisions of this Court ought also to be
noticed and elucidation of law as propounded with the passage of time - the
decisions being:
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(i) A.K. Roy v. Union of India, (1982] I SCC 271 wherein this Court
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in paragraphs 28 and 29 of the Report observed as below:
"28. There are however, two reasons why we do not propose to
discuss at greater length the question as regards the justiciability of
the President's satisfaction under Article 123 (I) of the Constitution.
I
GURUDEVDATIA VKSSS MARYADIT v. STATE [BANERJEE, J.]
665
... .+
In the first place, the ordinance has been replaced by an Act. It is true,
A
as contended by Shri Tarknnde, that if the question as regards the
justiciability of the President's satisfaction is not to be considered for
the reason that the ordinance has become an Act, the occasion will
hardly ever arise for considering that question because, by the time
the challenge made to an ordinance comes up for consideration before
B
the court, the ordinance almost invariably shall have been replaced
,.
~
by an Act. All the same, the position is firmly established in the field
of constitutional adjudication that the court will decide no more than
needs to be decided in any particular case. Abstract questions present
interesting challenges, but it is for scholar and textbook writers to
uuravel their mystique. It is not for the courts to decide questions c
which are but of academic importance.
29. The other reason why we are not inclined to go into the question
as regards the justiciability of. the President's satisfaction under
Article 123 (I) is that on the material which is placed before us, it
D
is impossible for us to arrive at a conclusion one way or the other.
We are not sure whether a question like the one before us would be
governed by the rule of burden of proof contained in Section 106 of
the Evidence Act, though we are prepared to proceed on the basis that
the existence of circumstances which led to the passing of the
....
Ordinance is especially within the knowledge of the executive. But
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before casting the burden on the executive to establish those circum-
..
stances, at least a primafacie case must be made out by the challenger
to show that there could not have existed any circumstances necessitating the issuance of the Ordinance. Every casual or passing
challenge to the existence of circumstances, which rendered it neeF
essary for the President to take immediate action by issuing an
ordinance, will not be enough to shift the burden of proof to the
executive to establish those circumstances. Since the petitioners have
not laid any acceptable fonndation for us to hold that no circum-
~
stances existed or could have existed which rendered it necessary for
the President to take immediate action by promulgating the impugned
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Ordinance, we are nnable to entertain the contention that the Ordinance is unconstitutional for the reason that the pre-conditions to the
.~
,),.
exercise of the power conferred by Article 123 are not fulfilled. That
is why we do not feel called upon to examine the correctness of the
submission made by the learned Attorney-General that in the very
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[200 I] 2 S.C.R.
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nature of things, the "satisfaction" of the President which is the basis
on which he promulgates an ordir.ance is founded upon materials
}
which may not be available to others and which may not be disclosed
without detriment to public interest and that, the circumstances
justifying the issuance of the Ordinance as well as the necessity to
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issue it lie solely within the President's judgment and are, therefore,
not justiciable."
)' ..
(ii) The second in the line of citations from the Bar is the decision in
State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., [1983] 2 SCC
33, since this particular decision does not lend any particular assistance or
c
so to say, advance the issue to the contentions raised in the matter further,
we refrain ourselves from dealing with the same, as such we need not dilate
on that score any further.
(iii) The third decision being the locus classic us to the issue, D. C.
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Wadhwa v. State of Bihar, [1987] 1 SCC 378 wherein this Court in no
uncertain terms observed that since the primary law making authority under
the Constitution is the Legislature and not the Executive and it is possible
that circumstances may arise which render it necessary to take immediate
action when the Legislature is not in session, in such a case and in order that
public interest may not suffer by reason of the failure of the legislature to
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deal with the emergent situation, the Governor is vested with the power to
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promulgate the Ordinance. This Court further observed that the power to
promulgate Ordinance is essentially a power to be used to meet an extra-
-
ordinary situation though it cannot be allowed to be perverse to serve political
ends. It is on this count of judicial ad-negation Mr. Bobde found fault with
F
the judgment under appeal since the instant Ordinance, as appears from the
Statement of objects and reasons, cannot but be so declared. The law thus
remains clarified that judicial reluctance cannot be faulted in any way unless
of course an element of constitutionality of the legislation comes up for
consideration. The issue of political question as argued before this Court in
~
the matter and noticed above, pertains, however, to the judicial review of
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legislation. A large number of decisions have been cited though not noticed
above, since the same do not stand to any further assistance at the bar but
judicial ad-negation has been the resultant conclusion in all these cases unless
of course, there is any violation of any fundamental right and the constitu-
,(
tionality is the issue between the parties as noted above. The political question
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doctrine has however, to be treated to be a tool for maintenance of govern-
GURUDEVDATIA VKSSS MARYADIT v. STATE [BANERJEE,!.]
667
'
~
mental order but as noticed above, there is no blanket rule of judicial
A
reluctance since the question arises as to whether the case presents the
political question and for this purpose, facts of each case shall have to be
considered in its proper perspective so as to assess the situation. This,
however, opens up a wider debate on to the different issue of Articles 123
and 213 and the action is legislative in character. It is not an administrative
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or executive action but being legislative in nature, it is subject only to
->
~
constitutional limitations applicable to an ordinary statnte. 111e Ordinance, if
does not infringe the constitutional safeguards, cannot be examined nor the
motive for such a promulgation can be in question. Mr. Desai appearing for
Intervenor Respondent very strongly urged that the Court cannot examine the
satisfaction of the Governor in promulgating an ordinance and the law is well c
settled on this count by this Court in the Nagaraj's case K. Nagaraj and
Others.v. Stale of Andhra Pradesh and Another, [1985] 1 SCC 523, wherein
this court held that it is impossible to accept the submission that the ordi11ance
can be invalidated on the ground of non-application of mind. It is a power
of the Executive to legislate and this power is plenary within its field like
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the power of the State Legislature to pass the laws. 111e Constitution Bench's
judgment in T. Venkata Reddy's case (T. Venkatu Reddy und 01hers v. State
of Andhra Pradesh, [1985] 3 SCC 198), wherein the earlier judgment of the
Federal Court in l.axmi Narain Das v. Province of Bihar, (1949) FLR 693,
-
have been followed, re- affirmed the observations in Nagaraja's case, the
..
Constitution Bench observed that the motive of Legislature in passing a
E
statute is beyond the scrutiny of the courts. It is not only the propriety to
follow the Constitutional Bench judgment but we are definitely of tl1e opinion
and view that by no stretch, the courts can interfere a legislative malice in
passing a statute. Interference is restrictive in nature and that too on the
constitutionality aspect and not beyor.d the same.
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We may thus note here that though a definite motive has been ascribed,
we are not in a position to lend concurrence to Mr. Bobde' s submission that
there is any legislative malice. Legislative malice is beyond the pale of
jurisdiction of the law courts and since there is no constitutional invalidity
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neither the same has been contended before us, question of interference with
the matter pertaining to the first proviso or even the ordinance does not and
cannot arise. In any event, the Ordinance, strictly speaking, may be ascribed
Jo..
to be totally irrelevant in the present context, but if the executive in its
wisdom thought it fit to promulgate such an ordinance, it is no part of our
duty to describe it as othetwise not required even as and by way of a
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[2001] 2 S.C,R
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clarification since the administrative expediency permitted the legislative
function on to the executive.
B
Needless to repeat the factual score that the High Court hadn't had the
opportunity to consider the Ordinance which stands promulgated only after
the disposal of the appeal and during the pendency of the matter before this
court: The Ordinance, however, has a retrospective operation and coincides
with the date of introduction of the amended proviso to Section 27(3) of the
Act of 1960.
On the wake of the aforesaid, we cannot proceed with the matter any
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further without, however, having a close look at the Ordinance as promulgated and in the event of experiencing any difficulty, the Statement of objects
can be considered but if it is'otherwise, Mr, Bobde's submission would pale
into insignificance and thus have to be stamped as wholly untenable.
It is on this score, however, that Article 213 becomes relevant being
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the source of power of the Executive to use legislative functions. Article 213
in so far as is material reads as below:
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H
"213. (1) If at any time, except when the Legislative Assembly of a
State is in session, or where there is a Legislative Council in a State,
except when both Houses of the Legislature are in session, the
governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such
ordinances as the circumstances appear to him to require:
•
•
•
•
(2)
An ordinance promulgated under this article shall have the same
force and effect as an Act of legislature of the State assented to
by the Governor, but every such Ordinance -
(a)
shall be laid before the Legislative Assembly of the State,
or where there is a Legislative Council in the State, before
both the Houses, and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature,
or if before the expiration of that period a resolution
disapproving it is passed by the Legislative Assembly and
agreed to by the Legislative Council, if any, upon the
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GURUDEVDATIA VKSSS MARYADIT v. STATE [BANERJEE, J.]
669
passing of the resolution or, as the case may be, on the
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resolution being agreed to by Council; and
(b) may be withdrawn at any time by the Governor.
Explanation - Where the Houses of the legislature of a State having
a Legislative Council are summoned to re-assemble on different dates,
B
the period of six weeks shall be reckoned from the later of those dates
for the purposes of this clause."
Article 213 however, is to be read along with Article 174 which enjoins
that the legislature shall meet at least twice in a year but six months shall
not intervene between its last sitting in one session and the date appointed
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for its first sitting in the next session. Thus maintaining the democratic
favour of the Constitution with three separate organs of the State functioning
within its restrictive sphere. There is existing sufficient constitutional safeguard and rigour and a plain reading of the language used therein depicts the
same.
Article 213 authorises promulgation of an Ordinance and confers a
power of legislation on to the Governor only in the event of recording a
satisfaction that the circumstances exist which render it necessary for him to
take immediate action and he may thus promulgate such an Ordinance as the
D
circumstances appear to him to require and the Ordinance so promulgated can
E
be laid before the Legislative Assembly of the State at the expiry of six weeks
from the re-assembly of the Legislature. It is in this perspective it be noted
that the power of the Executive is only an emergent power to meet the
emergency. Mr. Bobde posed a question as a part of his submission as regards
the nature of the emergency since the statement of objects records the
Ordinance to be a mere clarificatory Ordinance, there seems to be some
substance since what was implicit has been stated to be made explicit by way
of clarification according to the plain English meaning of the words used in
the statement. This is, however, on assumption that we need to delve into the
matter in such detail. The emergency admittedly cannot thus be said to have
occurred in order to have an emergent legislation by exercise of an emergent
power of legislation by the Executive. The decision in Wadhwa's case (supra)
has been rather categorical that the Executive cannot by taking resort to an
emergency power takeover the law making function of the legislature and iu
the event, the executive assume such power, the same would be clearly
subverting the democratic process which lies at the core of our constitutional
"389.
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(2001) 2 S.C.R.
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scheme, for this, the people would be governed not by the laws made by the
Legislature as provided in the Constitution but by laws made by the Execu-
).
tive. We do appreciate such an exposition of law and lend our concurrence
thereto in its entirety.