Temptations of Executive Power: Repromulgation of Ordinances in India

This paper tells the story of an iconic decision in India: DC Wadhwa v State of Bihar. The Indian Constitution authorizes the executive to enact temporary legislation provided certain conditions are met. Can the executive repeatedly promulgate the same ordinance? In Wadhwa the court said no: Repromulgation negates the system of separated powers, and renders the legislature irrelevant. But a small window of exception was left open: In some cases, the executive could do so. The decision was an instant classic. How has the executive performed since? The paper looks at two levels of data. I study the frequency with, and the jurisdictional breath for, which Wadhwa has been cited. I also look at repromulgation since 1986. The data yields contradictory results. As a precedent, Wadhwa is a bright star. But repromulgation continued well in the 1990s. The Union executive took to it since the 1990s. As a result, Wadhwa is both a hallowed precedent, and an unenforced decision.