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LB-301-Constitutional Law-I |2022
(Justice D Y Chandrachud, T.S. Thakur, Madan B. Lokur, S.A. Bobde, A.K Goel, U.R Lalit, Nageswara Rao)
[A 7-judge Constitution bench has held that unfettered re-promulgation of ordinances is not permissible by the Constitution]
FACTS OF THE CASE:
In this case there were series of Ordinances passed by the Govt. of Bihar, through the state sought to take over 429 Sanskrit Schools, transferring the teachers and all employees of the school to state government. In the year 1989, the government issued the first Ordinance which was then followed by five successive ordinances. On 13 August 1990 the Governor promulgated a fresh Ordinance. This Ordinance contained in clauses 3 and 4, provisions which were materially different from those of the first three Ordinances.
Clauses 3 and 4 provided as follows:- 3 Taking over of management and control of non- government Sanskrit schools by State Government.(1) With effect from the date of enforcement of this Ordinance, 429 Sanskrit schools mentioned in Schedule 1 shall vest in the State Government and the State Government shall manage and control thereafter.
Effect of taking over the management and control.(1) The staff working in the Sanskrit schools mentioned in Annexure 1 of the Ordinance related to integration of its management and control into the State Government as per Schedule 3(1), will not be the employees of this school until and unless the Government comes to a decision regarding their services.
State Government will appoint a Committee of specialists and experienced persons to enquire about the number of employees, procedure of appointment as well as to enquire about the character of the staff individually and will come on a decision about validity of posts sanctioned by governing body of the school, appointment procedure and affairs of promotions or confirmation of services. Committee will consider the need of institution and will submit its report after taking stock of the views regarding qualification, experience and other related and relevant subjects. Committee will also determine in its report whether the directives regarding reservation for SC, ST and OBCs has been followed or not.State Government, after getting the report, will determine the number of staff as well as procedure of appointments and will go into the affair of appointment of teaching and other staff on individual basis and in the light of their merit and demerit will determine whether his service will be integrated with the Government or not. Government will alsodetermine the place, salary, allowances and other service conditions for them.
The Ordinances promulgated by the Governor followed a consistent pattern. None of the Ordinances was laid before the legislature. Each one of the Ordinances lapsed by efflux of time, sixweeks after the convening of the session of the legislative assembly. When the previous Ordinance ceased to operate, a fresh Ordinance was issued when the legislative assembly was not in session. The legislative assembly had no occasion to consider whether any of the Ordinances should be approved or disapproved. No legislation to enact a law along the lines of the Ordinances was moved by the government in the legislative assembly. The last of the Ordinances, like its predecessors, cease to operate as a result of the constitutional limitation contained in Article 213 (2)(a). The subject was entirely governed by successive Ordinances; yet another illustration of
166 Krishna Kumar Singh v. State of Bihar what was described by this Court as an Ordinance raj barely three years prior to the promulgation
of the first in this chain of Ordinances.
None of these Ordinances was placed before the state legislature. However, the government failed to enact a statute which met a requirement of all these Ordinances. Thus, the final Ordinance lapsed in the year 1992. The employees and the staff of the school challenged this in the court.
The High Court framed the following issues for consideration:
- Whether the Sanskrit schools stood denationalised upon the expiry of the Ordinances;
- Whether as a result of clause 4 of the fourth Ordinance the employees had ceased to be government servants which they have become in terms of the first Ordinance promulgated on 18 December 1989;
- Whether the fourth Ordinance was ultra vires Article 14 of the Constitution; Whether the services of the teachers must be regularised and they ought to be treated as government servants;
- Whether, in any event the petitioners were entitled to their salaries and emoluments. The High Court held that there was no permanent vesting of the schools in the State of Bihar, notwithstanding the expiry of the Ordinances. In the view of the High Court, the power topromulgate Ordinances is not a rule but an exception and is conferred upon the Governor to deal with emergent situations. The High Court held that in the present case there was a promulgation of successive Ordinances contrary to the decision of the Constitution Bench in D C Wadhwa. Moreover, none of the Ordinances has been laid before the legislature. As a result, the legislature was deprived of its authority to consider whether the Ordinances should or should not be approved. The High Court held that the failure to comply with the constitutional obligation to place the Ordinances before the legislature would have consequences: the Ordinances which were re- promulgated repeatedly were ultra vires and the petitioners had derived no legal right to continue in the service of the state. The High Court held that the petitioners were entitled to salary as government servants until 30 April 1992, the last date of the validity of the Ordinances, for the period during which the Ordinances had subsisted. The High Court finally held that in terms of its findings the managementof the schools would be governed in the same manner that prevailed prior to the promulgation of the first Ordinance. After the judgement of High Court, Petitioner moved to the Supreme Court and matter is before the Court for its learned perusal. There are two significant parts in the Judgement namely dissenting opinion of Justice Madan B. Lokur and majority opinion of Justice D.Y Chandrachud. First part covers the judgement of Justice Lokur and later on judgment of JusticeD.Y Chandrachud is discussed and final verdict is given. With regard to power contained under Article 213 of promulgation of Ordinance, Justice Madan B. Lokur observed that when the Governor of the State is satisfied that “circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the
167 Krishna Kumar Singh v. State of Bihar
circumstances appear to him to require.” However, this is subject to the exception that the Governor cannot promulgate an Ordinance when both Houses of the Legislature are in session. An Ordinance is promulgated by the Governor of a State on the aid and advice of his Council of Ministers and is in exercise of his legislative power. An Ordinance has the “same force and effect as an Act of the Legislature of the State assented to by the Governor” in terms of Article 213(2) of the Constitution. Clause (a) of Article 213(2) of the Constitution provides that every such Ordinance “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 expirationof six weeks from the reassembly 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 passing of the resolution or, as the case may be, on the resolution being agreed to by the Council.” Clause (b) of Article 213(2) of the Constitution provides that an Ordinance may be withdrawn at any time by the Governor. There is an Explanation to Article 213(2) of the Constitution but we are not concerned with it.
J. Lokur held that an Ordinance cannot create an enduring or irreversible right in a citizen. Consequently and with respect, a contrary view expressed by this Court in State of Orissa v. Bhupendra Kumar Bose andT. Venkata Reddy v. State of Andhra Pradeshrequires to be overruled. In overruling these decisions, he agreed with brother Chandrachud though his reasons are different.As far as the re-promulgation of an Ordinance is concerned, that the re-promulgation of an Ordinance by the Governor of a State is not per se a fraud on the Constitution. There could be exigencies requiring the re-promulgation of an Ordinance. However, re-promulgation of an Ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that circumstances exist which render it necessary for him to take immediate action for promulgating or re-promulgating an Ordinance.
J. Lokur further held that there is no dispute in these appeals that the Governor of Bihar promulgated as many as eight Ordinances (one after another and on the same subject) in exercise of his legislative power under Article 213(1) of the Constitution. None of these Ordinances waslaid before the Legislative Assembly or the Legislative Council.
It is important to stress, right at the threshold, that the promulgation of an Ordinance is a legislative exercise and an Ordinance is promulgated by the Governor of a State only on the aid and advice of the Executive; nevertheless, the Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. The State Legislature has no role in promulgating an Ordinance or actions taken under an Ordinance – that is within the domain of the Executive. The State Legislature keeps a check on the exercise of power by the Executive through the Governor. This is by a Resolution disapproving an Ordinance. The State Legislature is expected to ensure that the separation of powers between the Executive and the Legislature is maintained and is also expected to ensure that the Executive does not transgress the constitutional boundary and encroach on the powers of the Legislature while requiring the Governor to promulgate an Ordinance.
Article 213 of the Constitution does not require the Legislature to approve an Ordinance – Article 213(2) of the Constitution refers only to a Resolution disapproving an Ordinance. If an Ordinance is disapproved by a Resolution of the State Legislature, it ceases to operate as provided in Article 213(2)(a) of the Constitution. If an Ordinance is not disapproved, it does not lead to any conclusion that it has been approved it only means that the Ordinance has not been disapproved by the State Legislature, nothing more and nothing less.
168 Krishna Kumar Singh v. State of Bihar
The concept of disapproval of an Ordinance by a Resolution as mentioned in Article 213(2)(a) of the Constitution may be contrasted with Article 352(4) of the Constitution where a positive act of approval of a Proclamation issued under Article 352(1) of the Constitution is necessary. Similarly, a positive act of approval of a Proclamation issued under Article 356(1) of the Constitution is necessary under Article 356(3) of the Constitution. Attention may also be drawn to a Proclamation issued under Article 360 of the Constitution which requires approval under Article 360(2) of the Constitution. There is therefore a conscious distinction made in the Constitution between disapproval of an Ordinance (for example) and approval of a Proclamation (for example) and this distinction cannot be glossed over. It is for this reason that I am of the view that only disapprovalof an Ordinance is postulated by Article 213(2)(a) of the Constitution and approval of an Ordinance is not postulated by Article 213(2)(a) of the Constitution.
After the promulgation of an Ordinance by the Governor of a State at the instance of the Executive, that the Constitution visualizes three possible scenarios.
(a) Firstly, despite the seemingly mandatory language of Article 213(2)(a) of the Constitution, the Executive may not lay an Ordinance before the Legislative Assembly of the State Legislature. The question is: Is it really mandatory for an Ordinance to be laid before the Legislative Assembly and what is the consequence if it is not so laid?
(b) Secondly, the Executive may, in view of the provisions of Article 213(2)(b) of the Constitution advise the Governor of the State to withdraw an Ordinance at any time, that is, before reassembly of the State Legislature or even after reassembly. In this scenario, is it still mandatory that the Ordinance be laid before the Legislative Assembly?
(c) Thirdly, the Executive may, in accordance with Article 213(2)(a) of the Constitution lay an Ordinance before the Legislative Assembly of the State Legislature. What could happen thereafter?
As far as the first scenario is concerned, namely, the Executive not laying an Ordinance before the Legislative Assembly, brother Chandrachud has taken the view that on a textual reading of Article 213(2)(a) of the Constitution an Ordinance promulgated by the Governor shall mandatorily be laid before the State Legislature. With respect, I am unable to subscribe to this view.In this context, does the Constitution provide for any consequence other than the Ordinance ceasing to operate? In my opinion, the answer is No. If an Ordinance is not laid before the State Legislature it does not become invalid or void.
If an Ordinance not laid before the Legislative Assembly does not have the force and effect of a law, then it must necessarily be void ab initio or would it be void from the date on which it is required to be laid before the Legislative Assembly, or some other date? This is not at all clear and the view that the Ordinance would be of no consequence whatsoever or void introduces yet anotheruncertainty when should the Ordinance be laid before the Legislative Assembly immediately on its reassembly or on a later date and from which date does it become void?
Article 213(3) of the Constitution provides for the only contingency when an Ordinance is void. This provision does not suggest that an Ordinance would be void if it is not placed before the State
169 Krishna Kumar Singh v. State of Bihar
Legislature. The framers of our Constitution were quite conscious of and recognized the distinction between an Ordinance that is void (under Article 213(3) of the Constitution) and an Ordinance that ceases to operate (under Article 213(2) of the Constitution). If an Ordinance is void, then any action taken under a void Ordinance would also be void. But if an Ordinance ceases to operate, any action taken under the Ordinance would be valid during the currency of the Ordinance since it has the force and effect of a law. Clearly, therefore, the distinction between Clause (2) and Clause (3) of Article 213 of the Constitution is real and recognizable as also the distinction between an Ordinance that is void and an Ordinance that ceases to operate. A contrary view blurs thatdistinction and effectively converts an Ordinance otherwise valid into a void Ordinance. I am afraid this is not postulated by Article 213 of the Constitution.
For the above reasons, both textual and otherwise, I hold that on a reading of Article 213(2) of the Constitution it is not mandatory that an Ordinance should be laid before the Legislative Assembly of the State Legislature.
For second scenario J. Lokur, the reasons for withdrawal of an Ordinance by the Governor at the instance of the Executive, whether before or after reassembly of the State Legislature are not relevant for the present discussion and it is not necessary to go into them.
The third scenario is where the Executive, in accordance with Article 213(2)(a) of the Constitution lays an Ordinance before the Legislative Assembly. The Ordinance could be ignored and as a result no one may move a Resolution for its disapproval. In that event, the Ordinance would run its natural course and cease to operate at the expiration of six weeks of reassembly of the State Legislature.
However, if a Resolution is moved for disapproval of the Ordinance, the State Legislature may reject the Resolution and in that event too, the Ordinance would run its natural course and cease to operate at the expiration of six weeks of reassembly of the State Legislature.
The sum and substance of this discussion is: (i) There is no mandatory requirement that an Ordinance should be laid before the Legislative Assembly on its reassembly. (ii) The fate of an Ordinance, whether it is laid before the Legislative Assembly or not, is governed entirely by the provisions of Article 213(2)(a) of the Constitution and by the Legislative Assembly. (iii) The limited control that the Executive has over the fate of an Ordinance after it is promulgated is that ofits withdrawal by the Governor of the State under Article 213(2)(b) of the Constitution – the rest of the control is with the State Legislature which is the law making body of the State.
It is clear, therefore, that in the absence of a savings clause Article 213 the Constitution does not attach any degree of permanence to actions or transactions pending or concluded during thecurrency of an Ordinance. It is apparently for this reason that it was observed in Bhupendra Kumar Bose that in view of Article 213(2)(a) of the Constitution an Ordinance cannot have a savings clause which extends the life of actions concluded during the currency of the Ordinance.
58. Therefore, there is a recognizable distinction between a temporary Act which can provide for giving permanence to actions concluded under the temporary Act and an Ordinance which cannot constitutionally make such a provision. The reason for this obviously is that a temporary Act is enacted by a Legislature while an Ordinance is legislative action taken by the Executive.
There is a distinction between actions that are irreversible and actions that are reversible but a burden to implement. The situations that arose in Bhupendra Kumar Bose and Venkata Reddy
170 Krishna Kumar Singh v. State of Bihar
were not physically irreversible though reversing them may have been burdensome. If elections are set aside or posts are abolished, surely fresh elections can be held and posts revived. In this context, it is worth recalling that should the need arise, as in Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assemblythis Court can always restore the status quo ante. Bhupendra Kumar Bose and Venkata Reddy did not present any insurmountable situation.
Therefore, I am not in a position to incorporate the enduring nature or irreversible effect theory in an Ordinance or even the public interest or constitutional necessity theory. In a given situation, the State Legislature is competent to pass an appropriate legislation keeping the interests of its constituents in mind. To this extent, both Bhupendra Kumar Bose and Venkata Reddy are overruled.
KEY TAKE AWAY OF JUSTICE LOKUR OPINION:
- There is no mandatory requirement that an Ordinance should be laid before the Legislative Assembly.
- The fate of an Ordinance, whether it is laid before the Legislative Assembly or not, is governed entirely by the provisions of Article 213(2) (a) of the Constitution and by the Legislative Assembly.
- The limited control that the Executive has over the fate of an Ordinance after it is promulgated is that of its withdrawal by the Governor of the State under Article 213(2)(b) of the Constitution – the rest of the control is with the State Legislature which is the law making body of the State. Justice D Y Chandrachudwhile touching the issues before this case touched the historical evolution of ordinance making power of executive. He highlighted the practices in England and then come to British India about the origin of Article 123 and 213. The dilution of the power of the Monarch in England to rule by proclamations was in sharp contrast to the position which prevailed in the British colonies. The Governor Generals as representatives of the Crown were vested with extensive authority to issue Ordinances. The Indian Councils Act, 1861 empowered the Governor General to issue directions which had the force of law. A power was conferred upon the Governor General to issue ordinances by Section 23, subject to two conditions : (i) the power could be exercised in cases of emergency; and (ii) an Ordinance would remain in force for a period of not more than six months from its promulgation. Under the Government of India Act, 1915, the power to issue Ordinances was retained. In the Government of India Act, 1935, Section 42 empowered the Governor General to promulgate ordinances when the Federal Legislature was not in session provided that he was satisfied that circumstances existed which made it necessary that such a law be passed without awaiting reassembly of the legislature. Section 42(2) provided that an Ordinance promulgated under that provision would have the same force and effect as an Act of the Federal Legislature but was requiredto be laid before the legislature. The Ordinance would cease to operate upon the expiration of six weeks from the reassembly of the legislature or if before that period, resolutions disapproving it were passed by the legislature. The Governor General was in
171 Krishna Kumar Singh v. State of Bihar certain cases required to exercise his individual judgment for the promulgation of an
Ordinance while in others, he was to act on the instructions of His Majesty.
While highlighting constitutional assembly debate Justice D Y Chandrachud quoted from the memorandum which was prepared by B N Rau, the constitutional advisor envisaged a constitutional power for making ordinances. The memorandum contemplated that the President may promulgate an ordinance when Parliament is not in session, upon satisfaction that circumstances exist requiring immediate action. B N Rau acknowledged that ordinances were the subject of great criticism under colonial rule but sought to allay the apprehensions which were expressed on the ground that the President would normally act on the aid and advice of ministers responsible to Parliament and was not likely to abuse the ordinance making power.
The Governors (under Article 213) is a necessary concomitant to the supremacy of a democratically elected legislature. The reassembling of the legislature defines the outer limit forthe validity of the Ordinance promulgated during its absence in session. Within that period, a legislature has authority to disapprove the Ordinance. The requirement of laying an Ordinance before the legislative body subserves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature. The legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutionalauthority to disapprove an Ordinance. If an Ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating itsprovisions.
The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the constitutional obligation imposed by Article 213(2). It is upon an Ordinance being laid before the House that it is formally brought to the notice of the legislature. Failure to lay the Ordinance is a serious infraction because it may impact upon the ability of the legislature to deal with theOrdinancea Constitution Bench of this Court in R.K. Garg v. Union of India rejected thesubmission that while promulgating an Ordinance under Article 123 the President had no power to amend or alter tax laws. Dealing with the submission that the legislative power must exclusively belong to elected representatives and vesting such a power in the executive is undemocratic as it may enable the executive to abuse its power by securing the passage of an ordinary Bill without risking a debate in the legislature, the Constitution Bench emphasised the constitutional limitations on the exercise of the ordinance making powers.
Adverting to the speech made by Dr Ambedkar in the Constituent Assembly the Court noted that the legislative power conferred on the President under this Article is not a parallel power of legislation. Among the provisions that the Court emphasised are limitations on when the power canbe exercised and the duration of an Ordinance. The Constitution Bench carefully emphasised the element of legislative control in the following observations: …The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinancein misuse or abuse of this power, the legislature can not only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive. There is in the theory of constitutional law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature. In the view of the Constitution Bench, there is no qualitative difference between an Ordinance issued
172 Krishna Kumar Singh v. State of Bihar
by the President and an Act passed by Parliament. The same approach was adopted by another Constitution Bench of this Court in AK Roy v. Union of India where this Court spoke about the exact equation, for all practical purposes, between a law made by the Parliament and an ordinance issued by the President. The submission before the Court in a challenge to the validity of the National Security Ordinance was that an Ordinance is an exercise of executive and not legislative power. While rejecting that submission, the Constitution Bench held that : …the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued bythe President. Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power.
That power was to be used to meet extraordinary situations and not perverted to serve politicalends. The Constituent Assembly held forth, as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the government and the liberties of the people not disturbed or destroyed. In R C Cooper v. Union of India, a Bench of eleven Judges of this Court held that the presidential power to promulgate an ordinance is exercisable in extraordinary situations demanding immediate promulgation of law. This Court held that the determination by the President was not declared to be final.
Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground. (Id at p. 295) By a similar amendment, clause 4 was introduced into Article 213. The effect of the amendment was to grant an immunity from the satisfaction of the President or the Governor being subjected to scrutiny by any court. This amendment was expressly deleted by Section 16 of the Forty-fourth amendment.Applying the principles which emerge from the judgment of JusticeJeevan Reddy in Bommai, there is reason to hold that the satisfaction of the President under Article123(1) or of the Governor under Article 213(1) is not immune from judicial review. The power of promulgating ordinances is not an absolute entrustment but conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action. Undoubtedly, as this Court held in Indra Sawhney v. Union of India the extent and scope of judicial scrutiny depends uponthe nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions involved and such factors. Since the duty to arrive at the satisfaction rests in the President and the Governors (though it is exercisable on the aid and advice of the Council of Ministers), the Court must act with circumspection when the satisfaction under Article 123 or Article 213 is challenged. The court will not enquire into the adequacy, or sufficiency of the material before the President or the Governor. The court will not interfere if there is some material which is relevant to his satisfaction. The interference of the court can arise in a case involving a fraud on power or an abuse of power. This essentially involves a situation where the power has been exercised to secure an oblique purpose. In exercising the power of judicial review, the court must be mindful both of its inherent limitations as well as of the entrustment of the power to the head of the executive who acts on the aid and advice of the Council of Ministers owing collective responsibility to the elected legislature. In other words, it is only where the court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court may be warranted in a rare case. However, absolute immunity from judicial review cannot be supported as a matter of first principle or on the basis of constitutional history.
173 Krishna Kumar Singh v. State of Bihar
The accountability of the executive to the legislature is symbolised by the manner in which the Constitution has subjected the ordinance making power to legislative authority. This, the Constitution achieves by the requirements of Article 213. The first requirement defines the condition subject to which an ordinance can be made. The second set of requirements makes it mandatory that an ordinance has to be placed before the House of the legislature. The third requirement specifies the tenure of an ordinance and empowers the legislature to shorten the duration on the formulation of a legislative disapproval. Once the legislature has reconvened after the promulgation of an ordinance, the Constitution presupposes that it is for the legislative body in exercise of its power to enact law, to determine the need for the provisions which the ordinance incorporates and the expediency of enacting them into legislation.
A reasonable period is envisaged by the Constitution for the continuation of an ordinance, after the reassembling of the legislature in order to enable it to discuss, debate and determine on the need to enact a law. Re-promulgation of an ordinance, that is to say the promulgation of an ordinance again after the life of an earlier ordinance has ended, is fundamentally at odds with the scheme of Articles 123 and 213. Re- promulgation postulates that despite the intervening session of the legislature, a fresh exercise of the power to promulgate an ordinance is being resorted to despitethe fact that the legislature which was in seisin of a previously promulgated ordinance has not converted its provisions into a regularly enacted law.
In a judgment of a Division Bench of the Andhra Pradesh High Court in Mahanat Narayan Dessjivaru v. State of Andhra, it was held that once a scheme and a sanad were no longer operative, the rights, if any, accruing there from were extinguished. There was no scope for importing any notion of suspension into that expression. A discontinuation took effect once for all. What then is the effect upon rights, privileges, obligations or liabilities which arise under an ordinance which ceases to operate? There are two critical expressions in Article 213(2) which bear a close analysis. The first is that an ordinance shall have the same force and effect as an act of the legislature while the second is that it shall cease to operate on the period of six weeks of the reassembling of the legislature or upon a resolution of disapproval. The expression shall have the same force and effect is prefaced by the words an ordinance promulgated under this article. In referring to an ordinance which is promulgated under Article 213, the Constitution evidently conveys the meaning that in order to have the same force and effect as a legislative enactment, the ordinance must satisfy the requirements of Article 213. The expression shall cease to operate can on the one hand to be construed to mean that with effect from the date on which six weeks have expired after the reassembling of the legislature or upon the disapproval of the ordinance, it would cease to operate from that date. Cease to operate in this sense would mean that with effect from that date, the ordinance would prospectively have no operation. The ordinance is not void at its inception.
In State of Orissa v. Bhupendra Kumar Boseelections to a municipality were set aside by the High Court on a defect in the publication of the electoral roll. The Governor of Orissa promulgated an ordinance by which the elections were validated together with the electoral rolls. A Bill was moved in the state legislature for enacting a law in terms of the provisions of the ordinance but was defeated by a majority of votes. The State of Orissa filed an appeal before this Court against the decision of the High Court striking down material provisions of the ordinance. Before this Court, itwas urged on behalf of the respondent that the ordinance was in the nature of a temporary statute which was bound to lapse after the expiration of the prescribed period. It was urged that after the ordinance had lapsed, the invalidity of the elections which it had cured stood revived. It was in the
174 Krishna Kumar Singh v. State of Bihar
above background that this Court addressed itself to the question as to whether a lapse of the ordinance affected the validation of the elections under it. Justice Gajendragadkar, writing the opinion of a Constitution Bench held that the general rule in regard to a temporary statute is that in the absence of a special provision to the contrary, proceedings taken against a person under it will terminate when the statute expires. That is why the legislature adopts a savings provision similar to Section 6 of the General Clauses Act. But in the view of the court, it would not to be open to the ordinance making authority to adopt such a course because of the limitation imposed by Article 213(2)(a). The Constitution Bench relied upon three English judgments: Wicks v. Director of Public ProsecutionsWarren v. Windle and Steavenson v. OliverThe court ruled that since Ordinance is different from the legislation, it does not automatically create rights and liabilities thatgo out of its term of operation. Thus, there exists a vital difference between temporary legislation and Ordinance. Justice Chandrachud held that when the question of what effects will survive after the ordinance is reviewed, the court must examine that whether an undoing of such an act would run counter to the public interest. Thus, a test of public interest was added by Justice Chandrachud in his analysis of maintenance of rights once the Ordinance ceases to operate. Thus, by virtue of this seven-judge decision of Supreme Court bench, the court ensured that the executive does not abuse the power vested upon them under the Indian Constitution. The seven-judge constitution bench of the Supreme Court had held that re-promulgation of Ordinance is a fraud on the Constitution. The court also held that the satisfaction of the President or Governor under Article 123 or 213 while issuing an Ordinance is not immune from judicial scrutiny.
Judgement.
The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative in character. The power is conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action; An Ordinance which is promulgated under Article 123 or Article 213 has the same forceand effect as a law enacted by the legislature but it must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn; The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213; The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority; Consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control.
The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. Laying of the ordinance before the legislature is mandatory because the legislature has to determine: (a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments); The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process;
The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity. This would
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include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief; and The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles. The test is whether the satisfaction is based on some relevant material. The court in the exercise of itspower of judicial review will not determine the sufficiency or adequacy of the material. The court will scrutinise whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review in other words would enquire into whether therewas no satisfaction at all.
We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power. These ordinances which were never placed before the state legislature and were re-promulgated in violation of the binding judgment of this Court in D C Wadhwa are bereft of any legal effects and consequences. The ordinances do not create any rights or confer the status of government employees. However, it would be necessary for us to mould the relief (which wedo) by declaring that no recoveries shall be made from any of the employees of the salaries which have been paid during the tenure of the ordinances in pursuance of the directions contained in the judgment of the High Court.
By the verdict delivered by 7 Judge bench of the Supreme Court, it is unequivocally clear that Ordinances are subject to the judicial review and they do not automatically create the permanent effect. The ordinance making power of the government is generally alleged to have been abused by the government. The judgment delivered on 2nd January 2017 had concerned itself with the law- making power of the executive. The majority decision held by the Justice D Y Chandrachud, in the ratio of 5:2, has become a novel precedent for the future executions of democratic governance. Justice Chandachud further held that “issuing of Ordinance is conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action”. Thus, according to themajority decision of the court the Ordinance cannot be relieved from the judicial scrutiny.
