2004 (4) TMI 638 - HC - Indian Laws

Summary

Issues Involved:
1. Legality and constitutionality of Ordinance No. 2 of 2004.
2. Authority of the Governor to promulgate the Ordinance.
3. Financial management by the Caretaker Government.
4. Invocation of Articles 355, 356, and 360 of the Constitution of India.

Detailed Analysis:

1. Legality and Constitutionality of Ordinance No. 2 of 2004:
The petitioner in W.P. No. 6249 of 2004 challenged the legality and constitutionality of Ordinance No. 2 of 2004 issued by the Government of Andhra Pradesh on 31.3.2004. The petitioner argued that the Ordinance was illegal, unconstitutional, and without any legal or constitutional authority. The Ordinance authorized the State Government to withdraw money from the Consolidated Fund of the State to meet the estimated expenditure for a part of the financial year commencing on 1st April 2004. The petitioner contended that the Constitution prescribes a method for spending or drawing funds from the Consolidated Fund of the State, which requires legislative approval as provided in Article 204. The petitioner emphasized that no money shall be drawn except by law made in accordance with the provisions of Article 204, which necessitates the existence of a House and its approval.

2. Authority of the Governor to Promulgate the Ordinance:
The petitioner argued that the Governor's power to promulgate an Ordinance under Article 213 does not extend to infracting or violating constitutional prescriptions. The petitioner contended that the dissolved House can never have a recess, and therefore, the Ordinance-making power was not available to the State of Andhra Pradesh at the time. The court, however, found no substance in this argument. It held that Article 213 allows the Governor to promulgate an Ordinance "at any time" when the Legislative Assembly is not in session. The court clarified that the power of the Governor to promulgate an Ordinance is not limited to the recess of the Legislature and can be exercised even when the Assembly stands dissolved and fresh elections have been notified.

3. Financial Management by the Caretaker Government:
The petitioner argued that the Caretaker Government cannot take a policy decision, and issuing an Ordinance permitting the withdrawal of money from the Consolidated Fund of the State constitutes a major policy decision. The court, however, found that the Ordinance had the same force and effect as any Act of the State Legislature and that there was no prohibition in the Constitution against promulgating an Ordinance during the period when the Assembly is dissolved and a new Assembly has not yet been constituted. The court held that the Ordinance was validly promulgated and that it was an exercise of the Legislative Assembly's power as envisaged under Articles 205 and 206 of the Constitution.

4. Invocation of Articles 355, 356, and 360 of the Constitution of India:
The petitioner in W.P. No. 6250 of 2004 sought a direction against the Government of India to take appropriate steps under Articles 355 and 356 of the Constitution, alleging a constitutional breakdown and financial bankruptcy in the State of Andhra Pradesh. The petitioner also sought a direction to the Union of India to invoke its powers under Article 360 to declare a financial emergency. The court found no merit in this argument, holding that the Ordinance was validly promulgated and that there was no situation warranting the exercise of powers under Articles 355, 356, or 360 of the Constitution.

Conclusion:
The court dismissed all three writ petitions, holding that the Ordinance No. 2 of 2004 was validly promulgated by the Governor under Article 213 of the Constitution. The court found no substance in the petitioners' arguments challenging the legality and constitutionality of the Ordinance, the authority of the Governor, the financial management by the Caretaker Government, and the invocation of Articles 355, 356, and 360 of the Constitution.