KRISHNA KUMAR SINGH & ANR v. STATE OF BIHAR & ORS.
Tools
- Court
- Supreme Court of India
- Decided
- Bench
- T. S.THAKUR (CJI), MADAN B. LOKUR, S. A. BOBDE, ADARSH KUMAR GOEL, UDAY UMESH LALIT, DR. D. Y. CHANDRACHUD and L. NAGESWARA RAO
- Citation
- [2017] 5 S.C.R. 160
Source PDF (original scan)
Contains information from the Indian High Court / Supreme Court Judgments dataset, licensed under CC-BY-4.0
Machine-read from a scanned report. Check the printed page before citing. Report an error.
Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
A (Civil Appeal No. 5875of1994) c Constitution of India: Art.2 I 3 - Promulgation of Ordinances one after another in succession but none of them laid before the legislature - In the instant case, Governor of Bihar promulgated an Ordinance providing for taking over of 429 Sanskrit schools in the State - The services of teachers and other employees of the school were to stand transferred to the state government subject to certain conditions - The first Ordinance was followed by a succession of Ordinances - None of the Ordinances, which were issued in exercise of the power ·of the Governor under Art.213 were placed before the state legislature as mandated - Validi(v of the Ordinances -
Held
Every ordinance at issue 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 Supreme Court in D C Wadhwa were bereft of any legal effect and consequences - The ordinances did not create any rights or confer the status of government employees on the teachers and other employees of the schools - However, as regard the salaries paid during .the tenure of the ordinances pursuant to the directions made in the judgment of the High Court, no recoveries to be made from any of the employees - Ordinance Raj-Bihar Non-Government G Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 - Service law. (Per majority) Art.213 - Promulgation of Ordinances during recess of legislature - Requirement under - Held: The authority which is conferred upon the Governor to promulgate Ordinances is H 160
Catchwords
Arts.123, 213 - Significance of placing tabling the Ordinance -
Held
The placement of an Ordinance before the legislature is a constitutional necessizv; the under~ving object and rationale being to enable the legislature to determine (i) the need for and expediency of an ordinance; (ii) whether a law should be enacted: or (iii) whether the Ordinance should be disapproved. (Per majority) Art.213 - Failure to lay an Ordinance before the legislature - Impact of - Held: The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the constitutional
Catchwords
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 163 obligation imposed by Art.213(2) - Requirement of laying an A Ordinance before the state legislature is a mandatory obligation . and is not merely of a directory nature. (Per majority) Art.213 - Failure to lay an ordinance before the legislature amounts to an abuse of the constitutional process and is a serious dereliction of the constitutional obligation - Jn the case of delegated legislation, Parliamentary or state enactments may provide a requirement of laying subordinate legislation before the legislature - It is well-settled that a requirement of merely laying subordinate legislation before the House of the legislature is directory _: But where a disapproval of subordinate legislation is contemplated, such a requirement is mandatory. (Per majority) c Arts.123, 213 - Presidential/Governor satisfaction - Scope of -
Held
The constitutional power which has been conferred upon the President under Art. 123 and upon the Governors under Art.213 to promulgate ordinances is conditional - Apart from the condition that the power can be exercised only when the legislature is not in session, the power is subject to the satisfaction of the President (under Art.123) or the Governor (under Art.213) "'that circumstances exist which render it necessary for him to take immediate action. " (Per majority) Arts.123, 213 - Presidential/Governor satisfaction - Judicial review, scope - The satisfaction of the President under Art.123(1) or of the Governor under Art.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 - 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 Art.123 or Art.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 tbere 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 ofjudicial review, the court must be mindful
A 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 on(v 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 offirst principle or on the basis of constitutional history. (Per majority) Arts.I23, 213 - Re-promulgation of an Ordinance - Constitutionality of -
Held
Re-promulgation of ordinances is c constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law making authority in a parliamentary democracy - Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the D Governors - The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law givers under the Constitution - Open legislative debate and discussion provides sunshine which separates secrecy of ordinance making from transparent and accountable governance through law making.(Per majority)
Catchwords
Art.213(2)(a) and (b) - Expression "cease to operate" in Art.2I 3(2)(a) - When attracted -
Held
Is attracted in two situations - The first is where a period of six weeks has expired since the reassembling of the legislature - The second situation is where a F resolution has been passed by the legislature disapproving of an ordinance - Apart from these two situations that are contemplated by sub-clause (a), sub-clause (b) contemplates that an ordinance may be withdrawn at any time by the Governor - Upon its withdrawal the ordinance would cease to operate as well. (Per majority) G Art.213 - Consequence of an ordinance terminating on the expiry of a period of six weeks or, within that period, on a disapproval by the legislature - Held: The constitutional provision states that,.in both situations the ordinance ceases to operate - Where an ordinance has ceased to operate, would it result ipso Jure in a H revival of the state of affairs which existed before the ordinance
Catchwords
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 165 . ·' was promulgated - There are two constructions which need to be analysed - At one end of the spectrum is the view that once the legislature has expressed its disapproval by a resolution, the state of affairs which the ordinance brought about stands dissolved and that which existed on the eve of the ordinance stands revived - Jn this view, disapproval amounts to an obliteration of the effect of all that had transpired in the meantime -At the other end ofthe spectrum is the view that an ordinance upon being promulgated has the force and effect of a law enacted by the legislature - Hence, the lapsing of its term (on the expiry of six weeks or the passing of a resolution of disapproval)means that the ordinance ceases to operate from that date - Until the ordinance ceases to operate, it continues to have the force of law with the result that the enduring effects of an ordinance or consequences which have a permanent character may subsist beyond the life of 'the' ordinance - Alternatively, where a situation has been altered irreversibly in pursuance of the legal authority created by the ordinance, the clock cannot be set back to revive the state of affairs as it existed prior to the promulgation of the ordinance. (Per majority) Ordinance and temporary enactment - Distinction between - ls Ordinance a temporary enactment -
Held
A temporary Act is a law which is enacted by the legislature, Parliament or the state legislature in exercise of its plenary powers - While enacting a law. E the· legislature is entitled to define the period during which the law is intended to operate - The legislature decides whether the law will be for a limited duration or is to be permanent - An ordinance is not in the nature of a temporary enactment - An ordinance is conditioned by specific requirements - The authority to promulgate an ordinance arises only when the legislature is not in session and when circumstances requiring emergent action exist - The Constitution prescribes. that an ordinance shall remain valid ior a period of not more than six weeks after the legislature reassembles and even within that period, it will cease to operate if it is disapproved - Hence, the considerations which govern law making by a G competent legislature which has plenary powers to enact a law cannot be equated with a temporary enactment. (Per majority) .
Catchwords
Art.213 - Cease to operate - Connotation of in the context 'of Art.213 -
Held
The Constitution has in its provisions used different
A phrases including "repeal", "void", ··cease to have effect" and "cease to operate" - These phrases have different connotations: each cannot be equated with the other - Consequently, the court should be careful to not attribute to the expression "cease to operate" the same meaning as the expression "void" - This is of particular significance because clause 3 of Art.213 uses the expression "void" in relation to an ordinance which makes a provision which would not be valid if enacted in an act of the legislature of the state assented to by the Governor - Such a provision contained in an ordinance is declared to be void by clause 3 of Art.213 - Evidently, when the framers wished to indicate that a C provision of an ordinance would be void in a certain eventuality, the Constitution has expressly used that phrase - This would militate against equating the expression "cease to operate" with the expression "void" - Both have distinct connotations - Particularly, where the same constitutional article has used both phrases - 'cease to operate' (in clause 2) and 'void' in (clause 3) one cannot be read to have the same meaning as the other. (Per majority) Art.213 - Expression "cease to operate"- Connotation of -
Held
The expression "cease to operate" in Art.213(2)(a) applies both to an ordinance whose tenure expires after the prescribed period as well as in relation to an ordinance which is disapproved by the legislature - The content of the expression cannot hence mean two separate things in relation to the two situations. (Per majority) Power to frame ordinances - Enduring rights theory - Applicability of - Held: The theory which was accepted in the judgment in Bhupendra Kumar Bose cannot be applied to the power to frame ordinances - Acceptance of the doctrine of enduring rights in the context of an ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of rights and privileges, obligations and liabilities on the hypothesis that these are of an enduring character - The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy - .Doctrines/Principles. (Per majority) Law making power - Ordinance and subordinate legislation H - Requirement of an ordinance being laid before the legislature
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 167 cannot be equated with the laying of subordinate legislation -
Held
A An ordinance is made in the exercise of the legislative power of the Governor which is subordinate to and not a stream which runs parallel to the power of law making which vests in the state legislatures and Parliament - Any breach of the constitutional requirement of laying an ordinance before the legislature has to be looked upon with grave constitutional disfavour - The Constitution uses the express "cease to operate" in the context of a culmination of a duration of six weeks of the reassembling of the legislature or as a result of a resolution of disapproval - The framers introduced a mandatory requirement of an ordinance being laid before the legislature upon which it would have the same force and effect as a c law enacted by the legislature, subject the condition that it would cease to operate upon the expiry of a period of six weeks of the reassembling of the legislature or earlier, if a resolution of disapproval were to be passed. (Per majority) Rights, privileges, obligations and liabilities arisen under an ordinance - Effect on, when ordinance ceased to operate - Held: In determining the issue, the over arching consideration must be the element ofpublic interest or constitutional necessity - In deciding to mould the relief the effort of the court would be to determine whether undoing what has been done under the ordinance would manifestly be contrary to public interest - Impracticality and irreversibility in that sense are aspects which are subsumed in the considerations which weigh in the balance while deciding where public interest lies - The appropriate test to be applied is the test of public interest and constitutional necessi(v - This would 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 (Per majority) Scope of the Ordinance making power - Historical evolution - England, British India and Constituent Assembly - Discussed. G (Per majority) Art.213(2) - It is not mandatory under Art.213(2) to lay an Ordinance before the Legislative Assembly of the State Legislature, nor would the failure to do so result in the Ordinance not having the force and effect as an enacted law or being of no conseqlience
Catchwords
Art.213(2}(a) - Approval of an Ordinance is not postulated A by Art.213(2}(a) of the Constitution. (Dissenting view) (Per Madan B.Lokur, J.) Art.213 - Historical background relating to Ordinances - Discussed - Government of India, 1935 - ss.88, 90. (Per Madan B.Lokur, J.) B Ordinance - The nature of power invoked for issuing ordinances does not admit of creation of enduring rights in favour of those affected by such ordinances - The ordinances issued in the instant case could not have created any enduring rights in favour of Sanskrit school teachers particularly when the ordinances c themselves were a fraud on the Constitution. (Per T. S. Thakur, CJ/) Art.213 - Repromulgation of ordinances, validity of - None of them ever placed before the State legislature as required under Art. 213 (2) -
Held
Since the process of issuing the ordinances and repromulgation thereof was in the nature of a single transaction and a part of a single series on the same subject the vice of invalidity. attached to any such exercise of power would not spare the first, second and the third ordinances which would like the subsequent ordinances be unconstitutional on the same principle - These ordinances provided the foundation for the edifice of the subsequent repromulgations - If the edifice was affected, there is no way the foundation could remain unaffected by the vice of unconstitutionality. (Per T. S. Thakur, CJ/) General Clauses Act: s.6 - Repeal - Scope of - Held: s.6 in . its terms applies only to a repeal - An ordinance ceases to have effect six weeks from the date on which the legislature reassembles F (or upon the passing of a legislative resolution disapproving it) - An ordinance which lapses upon the expiry of its tenure of six weeks from the reassembly of the legislature is not repealed as such - Repeal of a legislation results from a positive or affirmative act of the legislative body based on its determination that the law is no longer required - Repeal takes place through legislation - An ordinance lapses ('ceases to operate') when it has failed to obtain legislative approval by being converted into a duly enacted legislation - s. 6 of the General Clauses Act protects rights, privileges
A and obligations and continues liabilities in cases of repeal of an enactment - The issue as to whether rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate would endure is not answered by s.6 of the General Clauses Act. (Per majority) B Words and phrases: Expression ''repeal", "void", 'cease to have effect", "cease to operate" - Distinction between. (Per majoriM Expression "cease to operate" - Meaning of (Per majority) C Expression "disapproval"- Meaning of (Per majority) Answering the reference, the Court
Held
Per Dr. D. Y. Chandrachud. J.: (for himself, S. A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit and L. Nageswara Rao, JJ.) D 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 force and 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 F 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 G 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 President or, as the case may be, the Governor acts on the aid and advice of the
Reporter's headnote (continued) and case details
p. 160
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 161 conditioned by two requirements - The first is that an Ordinance A can be promulgated only when the state legislature is not in session - The second requirement is that the Governor. before issuing an Ordinance has to be satisfied of the existence of circumstances rendering it necessary to take immediate action - The Governor is required to form a satisfaction of the existence of circumstances 'i3 which makes it necessary to take immediate action - Necessity is distinguished from a mere desirability - The expression "necessity,. coupled with "immediate action" conveys the sense that it is imperative due to an emergent situation to promulgate an Ordinance during the period when the legislature is not in session - Both these requirements indicate a constitutional intent to confine the power of the Governor to frame Ordinances within clearly mandated limits. (Per majority) Art.213(1) - Circumstances in which the Governor cannot promulgate an Ordinance without the instructions of the President - The three situations where the instructions of the President are required are: Where a Bill containing the same provisions requires the previous sanction of the President, for its introduction into the legislature; where a Bill containing the same provisions would be deemed necessary by the Governor for being reserved for consideration of the President; and where a law enacted by the state legislature containing the same provisions would require the assent of the President, failing which it would be invalid. (Per majority) Art.213 - Requirement of laying an Ordinance before the state legislature is mandatory- The expression "shall be laid" is a positive mandate which brooks no exceptions - That the word 'shall' in sub-clause (a) of clause 2 of Art. 213 is mandatory, emerges from reading the provision in its entirety. (Per majority) Art.213 - Tenure of an Ordinance - Though the Constitution contemplates that an Ordinance shall have the same force and effect qs a law enacted by the state legislature, this is subject to the G Ordinance being laid before the state legislature and coming to an end in the manner stipulated in sub-clauses (a) and (b) - It is brought to an end : By the Ordinance ceasing to operate upon the expiry of a period of six weeks of the reassembly of the legislature; or if the Ordinance is disapproved by a resolution of the state legislature in H
p. 162
A which event it ceases to operate on the resolution disapproving it being passed; or in the event of the Ordinance being withdrawn by the Governor. (Per majority) Art.163 - Governor acts on aid and advice of Council of Ministers - Governor while promulgating an Ordinance does not B constitute an independent legislature, but acts on the aid and advice of the Council of Ministers under Art.163- The Council of Ministers is collectively responsible to the elected legislative body to whom the government is accountable. (Per majority) Arts.123, 213 - Ordinance making power - Constitutional c control of Parliament and the state legislatures over the Ordinance making power of the President (under Art.123) and the Governors (under Art.213) is a necessary concomitant to the supremacy of a democratically elected legislature - The reassembling of the legislature defines the outer limit for the validity of the Ordinance promulgated during its absence in session - Within that period, a D 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 constitutional authority to disapprove an Ordinance - If an Ordinance has to continue beyond the tenure which is prescribed by Art.213(2)(a), a law has to be enacted by the legislature incorporating its provisions - Our Constitution does not provide that an Ordinance shall assume the character of a law enacted by the state legislature merely upon the passing of a resolution approving it. (Per majority)
p. 164
p. 166
p. 168
A whatsoever - When an Ordinance is promulgated it is printed in the Official Gazette and therefore every legislator is aware of its promulgation - Consequently, even if the Executive does not lay the Ordinance before the State Legislature or if tlie Secretary of the Legislative Assembly does not supply a printed copy of the B Ordinance, a Member of the Legislative Assembly is not helpless - His right to move a Resolution for disapproving the Ordinance cannot be taken away by this subterji1ge - This right of a Member of the Legislative Assembly cannot be made dependent on the Executive laying the Ordinance before the State Legislature, nor can this right be taken away by the Executive by simply not laying C the Ordinance before the Legislative Assembly - Therefore, even without making the laying of an Ordinance before the State Legislature mandatory, the Constitution does provide adequate checks and balances against a possible misuse of power by the Executive. (Dissenting view) (Per Madan B.Lokur, J.) D Art.213 - 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. (Dissenting view) (Per Madan B.Lokur, J.) Art.213 - In the absence of any challenge by the employees to the first three Ordinances promulgated by the Governor of the State of Bihar, their validity must be assumed - Consequently, even though first three Ordinances may have been repealed, the employees would be entitled to the benefits under them till they ceased to operate and the benefits obtained by the employees under these three Ordinances are justified - However, first three Ordinances do not confer any enduring or irreversible right or benefits on the employees - The promulgation of the fourth and subsequent Ordinances were not adequately justified by the State of Bihar in spite of a specific challenge by the employees and therefore they were rightly stntck down by the High Court. (Dissenting view) (Per Madan B.Lokur, J.)
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 169
p. 170
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 171
Council of Ministers which owes collective responsibility to the legislature. 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. c Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa. Article 213(2)(a) provides that an ordinance promulgated under that article shall "cease to operate" six weeks after the reassembling of the legislature or even earlier, if a resolution disapproving it is passed in the legislature. The Constitution has used different expressions such as "repeal" (Articles 252, 254, 357, 372 and 395); "void" (Articles 13, 245, 255 and 276); "cease to have effect" (Articles 358 and 372); and "cease to operate" (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression "cease to operate" in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void. An ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an act of the legislature of the state assented to by the Governor (Article 213(3)). The framers having used the expressions "cease to operate" and "void" separately in the same provision, they cannot convey the same meaning; The theory of enduring rights which has been laid down in the judgment in Bhupendra Kumar Bose and followed in T Venkata Reddy by the Constitution Bench is based on the analogy of a temporary enactment. There is a H
p. 172
A basic difference between an ordinance and a temporary enactment. These decisions of the Constitution Bench which have accepted the notion of enduring rights which will survive an ordinance which has ceased to operate do not lay down the correct position. The judgments are also no longer good law in view of the decision in S R Bommai; No express provision has been made in Article B 123 and Article 213 for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate. Such provisions are however specifically contained in other articles of the Constitution such as Articles 249(3), 250(2), 357(2), 358 and 359(1A). This is, however, not C . conclusive and the issue is essentially one of construction; of giving content to the 'force and effect' clause while prescribing legislative supremacy and the rule of law; 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 D the test of public interest and constitutional necessity. This would 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 E 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 its power of judicial review will not determine the F 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 there was no satisfaction at all. Every one of the ordinances at issue constituted G 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 DC Wadhwa are bereft of any legal effects and consequences. The ordinances do not create any rights or confer the status of government employees. However, no recoveries shall be made from any of H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 173 the employees of the salaries which have been paid during the A tenure of the ordinances in pursuance of the directions contained in the judgment of the High Court. [Paras 80, 81] [248-B-H; 249-A-H; 250-A-G] DC Wadhwa v. State of Bihar (1987) 1 SCC 378:(1987) 1 SCR 798; SR Bommai v. Union of India (1994) 3 B SCC 1: [1994] 2 SCR 644; Quarry Owners' Association v. State of Bihar (2000) 8 SCC 655:(2000] 2 Suppl. SCR 211 - relied on. T Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198 : [1985] 3 SCR 509; State of Orissa v. c Bhupendra Kumar Bose (1962] Suppl. (2) SCR 380 - disapproved. Krishna Kumar Singh v. State of Bihar (1998) 5 SCC 643 : (1998] 3 SCR 206; R.K. Garg v. Union of India (1981) 4 sec 675: [1982] 1 SCR 947; A. K Roy v. D Union of India (1982) 1 SCC 271: [1982] 2 SCR 272; R C Cooper v. Union of India (1970) 1. SCC 248: [1970) 3 SCR 530; A K Roy v. Union of India (1982) 1 SCC 271 : [1982] 2 SCR 272; Madhav Rao v. Union of India [1971] 3 SCR 9; State of Rajasthan v. Union of India [1978] 1 SCR 1; Indra Sawhney v. Union of India E (1992) Supp. (3) SCC 217: [1992) 2 Suppl. SCR 454; Mahanat Narayan Dessjivaru v. State of Andhra AIR (1959) AP 471; State of Punjab v. Mohar Singh AIR (1955) SC 84: [1955] SCR 893; State of Rajasthan v. Union of India (1977) 3 SCC 592:(1978] 1 SCR 1; F Keshavan Madhava Menon v. State of Bombay [1951) SCR 228 - referred to. The Case of Proclamations (1611) 12 Co Rep 74; Pankina v. Secretmy of State for the Home Department [2010] 3 WLR 1526; Wicks v. Director of Public G Prosecutions (1947) A.C. 362; Warren v. Windle (1803) 3 East 205, 211-212 : 102 E.R. (K.B.) 578; Steavenson v. Oliver 151 E.R. 1024, 1026-1027 - referred to. P Ramanatha Aiyar, the Major Law Lexicon (IV Edn. Pg 1053; Justice C K Thakker's Encyclopaedic Law H
p. 174
A Lexicon Ashoka Law House Pg.879; Black's Law Dictionary Xth Edn. Pg.268; Parliamentary Procedure - the law, privileges and precedents by Subhash C Kashyap - referred to. Per Madan B.Lokur, J. (Partly dissenting) B I. It is not mandatory under Article 213(2) of the Constitution to lay an Ordinance before the Legislative Assembly of the State Legislature, nor would the failure to do so result in the Ordinance not having the force and effect as an enacted law or being of no consequence whatsoever. Further, an Ordinance c cannot create an enduring or irreversible right in a citizen. [Paras 1, 2) [251-C-D] State of Orissa v. Bhupendra Kumar Bose (1962) Suppl. (2) SCR 380; T Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198: (1985) 3 SCR 509 - D overruled.
2. As far as the re-promulgation of an Ordinance is concerned, the re-promulgation of an Ordinance by the Governor of a State is not per sea fraud on the Constitution. There could be exigencies requiring the re-promulgation of an Ordinance. E 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. [Para 3) (251-E, F)
3. Finally, in the absence of any challenge by the employees to the first three Ordinances promulgated by the Governor of the State of Bihar, their validity must be assumed. Consequently, even though these three Ordinances may have been repealed, the employees would be entitled to the benefits under them till they ceased to operate and the benefits obtained by the employees under these three Ordinances arc justified. However, these three Ordinances do not confer any enduring or irreversible right or benefits on the employees. The promulgation of the fourth and subsequent Ordinances has not been adequately justified by the State of Bihar in spite of a specific challenge by the employees and therefore they were rightly struck down by the High Court. H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 175
(Para 4) [252-A, BJ A
4. Promulgation of an Ordinance: Article 213 of the Constitution provides 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 circumstances appear to him to require." B 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. Article 213 of the Constitution does not require the Legislature to approve an Ordinance - Article c 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 docs not lead to any conclusion that it has been approved - it D only means that the Ordinance has not been disapproved by the State Legislature, nothing more and nothing less. 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 E 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. A Proclamation issued under Article 360 of the Constitution also requires approval under Article 360(2) of the Constitution. There is therefore a conscious distinction made in the Constitution between disapproval of an Ordinance and approval of a Proclamation and this distinction cannot be glossed over. It is for this reason that only disapproval of 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. The expression of disapproval of an Ordinance could be at the instance of any one Member of the Legislative Assembly in view of Ruic 140 of the Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha. If the State Legislature disapproves an Ordinance by a H
176 SUPREME COURT REPORTS . (2017] 5 S.C.R.
A Resolution, it ceases to operate. [Paras 8-111 [253-C, F-H; 254- A-C]
5. After the promulgation of an Ordinance 5.1. After the promulgation of an Ordinance by the Governor of a State at the instance of the Executive, the B Constitution visualizes three possible scenarios. Firstly, despite t«e 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. Secondly, the Executive may, in view of the provisions of Article 213(2)(b) of c 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. 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. [para 12) [254-D-G; 255-A] D 5.1.1. First scenario: Article 213(2)(a) of the Constitution provides that an Ordinance ceases to operate at the expiration of six weeks of reassembly of the State Legislature or if before the expiration of that period a Resolution disapproving it is passed by the State Legislature. An Ordinance ceasing to operate at the expiration of six weeks of reassembly of the State Legislature is not related or referable to laying the Ordinance before the State Legislature. Therefore, whether an Ordinance is laid before the State Legislature or not, the provisions of Article 213(2)(a) of the Constitution kick in and the Ordinance will cease to operate at the expiration of six weeks of reassembly of the State Legislature. On a textual interpretation of Article 213(2)(a) of the Constitution, not laying an Ordinance before the Legislative Assembly has only one consequence, which is that the Ordinance will cease to operate at the expiration of six weeks of reassembly of the State Legislature. [para 14] [255-B-F] G 5.1.2. If an Ordinance is not laid before the State Legislature it docs not become invalid or void. An Ordinance, on its promulgation either has the force and effect of a law or it does not - there is no half-way house dependent upon what steps the Executive might or might not take under Article 213(2) of H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 177 the Constitution. Article 213(2) of the Constitution is, in a sense, disjunctive-the first part declaring that an Ordinance promulgated under this Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor and the second part requiring laying the Ordinance before the Legislative Assembly. It is not possible to read the first part as being conditional or dependent on the performance of the second part, that is to say that if the Ordinance is not so laid, it will not have the force and effect of a law. There is nothing in Article 213(2) of the Constitution to suggest this construction. [Paras 15, 16) (255-G; 256-A-D] 5.1.3. Article 213(3) of the Constitution provides for the c 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 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 D 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. On a reading of Article 213(2) of the Constitution, therefore, it is not mandatory that an Ordinance should be laid before the Legislative Assembly of the State Legislature. (paras 17, 18, 19) (256-F-H; 257-A, BJ 5.1.4. What can a Member of the Legislative Assembly do if an Ordinance is not laid before the State Legislature - is he without recourse? When an Ordinance is promulgated it is printed in the Official Gazette and therefore every legislator is aware of its promulgation. As far as the State Legislature of Bihar is concerned, under Rule 140 of the Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha a printed copy of the Ordinance is also required to be made available to all Members H
178 SUPREME COURT REPORTS [2017] 5 S.C.R.
A of the Legislative Assembly by its Secretary. Therefore, on reassembly of the Legislative Assembly, any Member may move a resolution for disapproving the Ordinance either on the basis of the Official Gazette or on the basis of a printed copy of the Ordinance made available by the Secretary of the Legislative Assembly. Consequently, even if the Executive does not lay the B Ordinance before the State Legislature or if the Secretary of the Legislative Assembly does not supply a printed copy of the Ordinance, a Member of the Legislative Assembly is not helpless. Surely, his right to move a Resolution for disapproving the Ordinance cannot be taken away by this subterfuge. This right c of a Member of the Legislative Assembly cannot be made dependent on the Executive laying the Ordinance before the State Legislature, nor can this right be taken away by the Executive by simply not laying the Ordinance before the Legislative Assembly. Therefore, even without making the laying of an Ordinance before the State Legislature mandatory, the Constitution does provide adequate checks and balances against a possible misuse of power by the Executive. [Paras 20, 21) [257-D-H) 5.2. Second scenario As far as the second scenario is concerned, the Executive is entitled to, 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 after its reassembly but before it is laid before the Legislative Assembly. In either situation (particularly in the latter situation) it could not be said that laying the Ordinance before the Legislative Assembly would still be mandatory. In such situations, no purpose would be served by laying a withdrawn Ordinance before the State Legislature except perhaps completing an empty formality. Our Constitution has not been framed for the sake of completing empty formalities. This is an additional reason for holding that there is no mandatory requirement that regardless of the circumstances, an Ordinance G shall mandatorily be placed before the State Legislature. [Para 22) [258-A-C] 5.3. Third scenario 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 H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 179
Ordinance could be 'ignored' and as a result no one may move a 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 B Ordinance would run its natural course and cease to operate at the expiration of six weeks of reassembly of the State Legislature. But if a Resolution for disapproval of an Ordinance is accepted and the Ordinance disapproved then it would cease to operate by virtue of the provisions of Article 213(2)(a) of the Constitution on the Resolution being passed by the Legislative Assembly and the Legislative Council agreeing with it. [Paras 24-26] [258-E- H]
6. When a Bill is introduced in the Legislative Assembly, it becomes the property of the Legislative Assembly and even assuming an Ordinance is laid before the State Legislature and is disapproved by a Resolution, the disapproval has no impact on the Bill. Conversely, if the introduction of a Bill is declined by the Legislative Assembly or a Bill introduced in the Legislative Assembly is de.feated, it will have no impact on an Ordinance laid before the Legislative Assembly which will continue to operate till it is disapproved or it ceases to operate at the expiration of six weeks of reassembly of the Legislative Assembly. Whether to pass or not pass or enact or not enact a Bill into a law is entirely for the Legfslative Assembly to decide regardless of the fate of the Ordinance, as is obvious or is even otherwise evident from Blmpendra Kumar Bose. Similarly, disapproval of an Ordinance F is entirely for the Legislative Assembly and the Legislative Council to decide regardless of the fate of any Bill introduced or sought to be introduced. [Para 29] (259-E-G]
7. Effect of concluded transactions under an Ordinance When an Ordinance is sought to be replaced by a Bill G introduced in the State Legislature, it is entirely for the State Legislature to decide whether actions taken under the Ordinance are saved or are not saved or actions taken but not concluded will continue or will not continue. Being constitutionally transient, an Ordinance cannot, unlike a temporary Act, provide for any H
180 SUPREME COURT REPORTS [2017] 5 S.C.R.
A savings clause or contingency. Even if an Ordinance hypothetically could provide for such a savings clause, the State Legislature may not accept it, since a Bill introduced by the government of the day is the property of the State Legislature and it is entirely for the State Legislature to decide the contents of the Act. When an Ordinance ceases to operate, there is no doubt that all actions B in the pipeline on the date it ceases to operate will terminate. This is simply because when the Ordinance ceases to operate, it also ceases to have the same force and effect as an Act assented to by the Governor of the State and therefore pipeline actions cannot continue without any basis in law. All actions intended to c be commenced on the basis of the Ordinance cannot commence after the Ordinance has ceased to operate. As far as an Act enacted by a State Legislature is concerned, there is no difficulty in appreciating the consequence of its repeal. Section 6 of the General Clauses Act, 1897 is quite explicit on the effect of the repeal of an Act passed by a Legislature. In so far as a temporary Act is concerned, actions taken during its life but not concluded before it terminates (pipeline transactions) will not continue thereafter since those actions and transactions would not be supported by any existing law. However, to tide over any difficulty that might be caused in such an eventuality, a temporary Act could provide for the continuance of such actions and transactions. The reason for this is that a temporary Act is enacted by the Legislature and it certainly has the power to cater to such eventualities. Therefore, if there is a permissive provision to the contrary, a pipeline transaction could survive the life of a temporary Act. It must be remembered that an Ordinance has "the same force and effect as an Act of the Legislature of the State assented to by the Governor" (Art. 213(2) of the Constitution) but is not an Act of the Legislature - it is not even a temporary Act of the Legislature. (Paras 31, 32, 35, 41) (260-C-H; 261-A-C; 263-G, HJ Warren v. Windle (1803) 3 East 205; 102 E.R. (KB) G 578; Steavenson v. Oliver 151 E.R. 1024; Wicks v. Director of Public Prosecutions [1947) AC 362 - referred to.
8. Historical background Section 88 of the Government of India Act, 1935 gave power to the Governor of a Province to H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 181 promulgate an Ordinance during the recess of the Legislature, if he is satisfied that circumstances exist which render it necessary to take immediate action. Section 90 of the Act, 1935 gave an extraordinary power to the Governor to enact a Governor's Act containing such provisions as he considers necessary. Sub- section (3) of Section 90 of the Act, 1935 provides that a Governor's Act shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor. The significance of having two separate provisions, Section 88 and Section 90 is that this Act also accepted a distinction between an Ordinance (having a limited life) and an Act (having a 'permanent' life until repeal). An Ordinance would have a limited shelf life in c terms of Section 88 of the Act, 1935 and it would cease to have any force and effect as an Act of the Provincial Legislature assented to by the Governor after the expiry of its shelf life. If the effect of an Ordinance promulgated by the Governor were to survive after the expiry of its shelf life for an indefinite period, there would D have been no occasion for enacting Section 90 of the Act, 1935 empowering the Governor to enact a Governor's Act, since an appropriately drafted savings clause in an Ordinance would serve the same purpose. Appreciating this distinction, the Constituent Assembly did away with the extraordinary power of enacting an Act conferred on the Governor under Section 90 of the Act, 1935. E However, it retained the impermanence of an Ordinance as is clear from a reading of Article 213 of the Constitution. The retention of impermanence is also clear from a reading of Article 213 of the Constitution in juxtaposition with some other provisions of the Constitution. For example, Article 357(2) of the Constitution F (as originally framed) provided that Parliament or the President or any other authority may exercise the power of a State Legislature in making a law during a Proclamation of an emergency issued under Article 356 of the Constitution. However, that law shall cease to have effect on the expiration of one year after the Proclamation has ceased to operate "except G as respects things done or omitted to be done before the expiration of the said period ...... " By the Constitution (Forty- second Amendment) Act, 1976 the period of one year was deleted and such law shall continue in force until altered or repealed or amended by a competent Legislature or other authority even after H
182 SUPREME COURT REPORTS [2017] 5 S.C.R.
A the Proclamation issued under Article 356 of the Constitution has ceased to operate. [Paras 51-54] [267-E-H; 268-A-E)
9. Similar provisions excepting things done or omitted to be done (for a limited period of six months) are found in Article 249 and Article 250 of the Constitution notwithstanding that a B Resolution passed under Article 249 of the Constitution has ceased to be in force (in the case of Article 249 of the Constitution) or a Proclamation issued under Article 356 of the Constitution has ceased to operate (in the case of Article 250 of the Constitution). Although Article 359(1-A) of the Constitution was not a part of the Constitution as originally framed, it too c provides for saving things done or omitted to be done before the law ceases to have effect. Brother Chandrachud has sufficiently dealt with these and other similar provisions of the Constitution and it not necessary to repeat the views expressed in this regard. It is clear, therefore, that in the absence of a savings clause Article D 213 the Constitution does not attach any degree of permanence to actions or transactions pending or concluded during the currency 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 E currency of the Ordinance. 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 F is enacted by a Legislature while an Ordinance is legislative action taken by the Executive. [Paras 55-58] (268-F-H; 269-A-C) S. Krishnan v. State of Madras (1951] SCR 621 - relied on.
10. In view of Article 213(2) of the Constitution an G Ordinance cannot, on its own terms, create a right or a liability of an enduring or irreversible nature otherwise an extraordinary power would be conferred in the hands of the Executive and the Governor of the State which is surely not intended by our Constitution. If such a power were intended to be conferred upon the Executive and the Governor of the State, it would be
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 183 bringing in Section 90 of the Government of India Act, 1935 into our Constitution through the back door. If a situation could be reversed through the enactment of a retrospective law, then surely the status quo ante can be restored on the lapsing of an Ordinance by efflux of time or its disapproval by the Legislative Assembly. The same can be said of an action or transaction of an enduring nature. Undoubtedly, there are a few physical facts that are of an enduring nature or irreversible. For example, if an Ordinance were to provide for the imposition of the death penalty for a particular offence and a person is tried and convicted and executed during the currency of the Ordinance, then obviously an irreversible situation is created and even if the Ordinance lapses c by efflux of time or is void, the status quo ante cannot be restored. So also in a case of demolition of an ancient or heritage monument by an Ordinance. Such physically irreversible actions are few and far between and are clearly distinguishable from 'legally irreversible' actions. There is a distinction between actions that D are 'irreversible' and actions that are reversible but a burden to implement. The situations that arose in Bliupendra Kumar Bose and Venkata Reddy were not physically irreversible though reversing them may have been burdensome. (Paras 64-66) [271- B-G) E Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1:(2016) 6 SCR 1 - relied on. Validity of the Ordinances 11.1. All the Ordinances have ceased to operate and nothing done under them now survives after they have ceased to operate. The validity of the first three Ordinances was not challenged by the employees. There is no material to hold that the promulgation of the first Ordinance and its re-promulgation by the second and third Ordinances is invalid. Therefore, one can only assume that the first three Ordinances are valid and the employees are entitled to the benefits under them till the date these Ordinances ceased to operate and not beyond, since these Ordinances were not replaced by an Act of the State Legislature. It is not every re- promulgation of an Ordinance that is prohibited by D.C. Wadhwa H
184 SUPREME COURT REPORTS [2017] 5 S.C.R.
A v. State of Bihar. There is no universal or blanket prohibition against re-promulgation of an Ordinance, but it should not be a mechanical re-promulgation and should be a very rare occurrence. Additionally, a responsibility is cast on the Governor of a State by the Constitution to promulgate or re-promulgate an Ordinance only if he is satisfied of the existence of circumstances B rendering immediate action necessary. [Para 68] [272-C-F] U.2. Only the fourth and subsequent Ordinances wen~ challenged by the employees. As far as the fourth and subsequ~ilt Ordinances are concerned, their promulgation and re• promulgation was not adequately justified by the State of Bihar c despite a specific challenge. There was no immediate action required to be taken necessitating the promulgation of the fourth Ordinance and its re-promulgation by subsequent Ordinances. The fourth Ordinance and subsequent Ordinances should be struck down. In the absence of any challenge to the first three D Ordinances, the benefit given to the employees (such as salary and perks) by these Ordinances till they ceased to operate arc justified. However, these three Ordinances did not and could not grant any enduring or irreversible right or benefits to the employees and the employees did not acquire any enduring or irreversible right or benefits under these three Ordinances. Any E right or benefits acquired by them terminated when the Ordinances ceased to operate. Despite a specific challenge made to the fourth and subsequent Ordinances, the State of Bihar has not justified their promulgation. They are therefore struck down. The directions given by the High Court for payment of salary (if F not already paid) and interest thereon need not be disturbed. [Paras 69-72] (272-G; 273-A-D] Bhupendra Kumar Buse v. State uf Orissa OJC No.12 of 1959 decided on 20.03.1959 by the Orissa High Court [MANU/OR/0014/1960]; D.C. WadlllVa v. State of G Bihar (1987) 1 SCC 378: (1987] lSCR 798- referred to.
Judgment
T. S. Thakur, CJI (Concurring)
11. Repeated rcpromulgation of the ordinances was a fraud on the Constitution especially when the Government of the time H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 185
appears to have persistently avoided the placement of the A ordinances before the legislature. Even Lokur, J. found repromulgated ordinances to be unconstitutional except for the first three ordinances which, according to His Lordship, survive not because they were unaffected by the vice of unconstitutionality but because they were not challenged by the petitioners. The B need for such a challenge did not arise. Because the first, second and third ordinances stood repealed by the subsequent ordinances issued by the Government. At any rate, since the process of issuing the ordinances and repromulgation thereof was in the nature of a single transaction and a part of a single series on the same subject the vice of invalidity attached to any such exercise c of power would not spare the first, second and the third ordinances which would like the subsequent ordinances be unconstitutional on the same principle. These ordinances provided the foundation for the edifice of the subsequent repromulgations. If the edifice was affected, there is no way the foundation could remain D unaffected by the vice of unconstitutionality. The ordinances in question starting with Ordinance 32 of 1989 and ending with Ordinance 2 of 1992 were all constitutionally invalid, the fact that none of them was ever placed before the State legislature as required under Article 213 (2) of the Constitution of India. [Para 3] [274-C-H; 275-A] E
22. The nature of power invoked for issuing ordinances does not admit of creation of enduring rights in favour of those affected by such ordinances. The ordinances issued in the instant case could not have created any enduring rights in favour of Sanskrit school teachers particularly when the ordinances themselves were F a fraud on the Constitution. The teachers who were paid their salaries under the ordinances and who organised their lives and affairs on the assumption and in the belief that the amount paid to them was legitimately due and payable cannot at this distant point of time be asked to cough up the amount disbursed to them. Payments already made shall not accordingly be recoverable from G those who have received the same. The question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/ legislature is left open. [Paras 4-6] [275-C-G; 276-G] H
186 SUPREME COURT REPORTS [2017] 5 S.C.R.
A State of Orissa v. Bhupendra Kumar Bose [1962] Suppl. 2 SCR 380; T. Venkata Reddy v. State ofAndhra Pradesh (1985) 3 SCC 198 : (1985) 3 SCR 509 - overruled. D.C. Wadhwa and Ors. v. State of Bihar and Ors. (1987) 1 SCC 378 : (1987] 1 SCR 798 - referred to. B Case Law Reference In the Judi:;ment of Dr. D.Y. Chandrachud, J.: [1987] 1 SCR 798 relied on Para 1 (1998) 3 SCR 206 referred to Para 3 c [1982) 1 SCR 947 referred to Para 33 (1982) 2 SCR 272 referred to Para 34 (1970) 3 SCR 530 referred to Para 37 [1982] 2 SCR 272 referred to Para 39 (1971) 3 SCR 9 referred to Para 39 D (1978) 1 SCR 1 referred to Para 39 (1994) 2 SCR644 referred to Para 39 [1992] 2 Suppl. SCR 454 referred to Para 40 (1987) 1 SCR 798 referred to Para 45 E AIR (1959) AP 471 referred to Para 47 (1955) SCR 893 referred to Para 51 [1962) Supp. (2) SCR 380 Disapproved Para 55 (1985) 3 SCR 509 Disapproved Para 56 (1994] 2 SCR 644 referred to Para 63 F [1978] 1 SCR 1 referred to Para 63 [1951] SCR 228 referred to Para 65 (2000] 2 Suppl. SCR 211 relied on Para 74
G In the Judgment of Madan B.Lokur, J.: (1985] 3 SCR 509 overruled Para2 [1962 Supp (2) SCR 380 overruled Para 28 (1951) SCR 621 relied on Para 35 (2016) 6 SCR I relied on Para 66 H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 187
Footnotes
In the Judgment of T. S. Thakur, CJI: [1987) 1 SCR 798 referred to Para 1 (1962) Supp. 2 SCR 380 overruled Para2 B [1985) 3 SCR 509 overruled Para2 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5875 of 1994. From the Judgment and Order dated 09.03.1994 of the High Court of Patna in CWJC No. 7844 of 1990 c WITH Civil Appeal No. 5876-5890of1994 Writ Petition (C) No. 580 of 1995 Civil Appeal No. 3533-3595of1995. D Ranjit Kumar, SG, Mukul Rohtagi, AG, A.N.S. Nadkarni, ASG, T.R. Andhyarujina (A.C.), Salman Khurshid, Rakesh Dwivedi, V. Giri, C.U. Singh, Sr. Advs., Ms. Madhvi Divan, Ms. Binu Tamta, Dhruv Tamta, Ritesh Kumar, S.S. Rebello, Amogh V. Prabhudesai, Ajay Sharma, Subhash Acharya, Pankaj Pandey, B.K. Prasad, L.R. Singh, E Ms. Shabeena Anjum, Ms. Mitali Chauhan, Ms. Gargi Srivastava, Ms. Shubhi Sharma, Akhilesh Pandey, Gopal Singh, Manish Kumar, Ms. Vimla Sinha, Rituraj Biswas, Chandan Kumar, Shivam Singh, Aditya Raina, Shreyas Jain, AdvitiyaAwasthi, Ms. Varsha Poddar, Milind Kumar, Sagar Chakravarty, Ram Kishore Singh, Ms. Sansriti Pathak, F Ms. Apoorva Garg, Ms. Babita Kushwaha, Devashish Bharuka, Ms. Anu Tyagi, Ms. Jennifer Rohita, Ms. Jaya Bharuka, Ravi Bharuka, Ms. Arpita Bishnoi, Manav Vohra, Ms. Svadha Shankar, C.D. Singh, Ms. Sylona Mohapatra, Rahul Rajput, Pankaj Pandey, R.C. Upadhya, Ms. Madhavi Diwan, B.K. Prasad, Ms. Nidhi Khanna, Ritin Rai, Niraj Gupta, Ms. Anshu Gupta, IrshadAhmad, Ms. Kamini Jaiswal, B.B. Singh, G P. Narasimhan, Ms. Manjula Gupta, Gopal Singh, Subhash Sharma, Anil Kumar, Prem Sunder Jha, R.U. Upadhyay, Rakesh Kumar Sharma, S.R. Setia, Advs. for the appearing parties. The following Judgments and Orderofthe Court were delivered by H
188 SUPREME COURT REPORTS [2017] 5 S.C.R.
A DR. D. Y. CHANDRACHUD, J. A Re-promulgation of Ordinances : the background to the teference professor of economics who was pursuing his research on land tenures in Bihar stumbled upon a startling practice. Ordinances were promulgated and re-promulgated by the Governor ofBihar - two hundred fifty six of them between 1967 and 1981. These Ordinances were kept alive for la,ng periods, going upto fourteen years. This academic research into the re~promulgation of Ordinances became the subject of a book 1 and a petition under Article 32 of the Constitution. The book provided c the backdrop ofajudgment ofa Constitution Bench of this Court in DC Wadhwa v. State ofBihar. 2 The Constitution Bench held that the practice which had been followed in the State of Bihar was in disregard of constitutional limitations.An exceptional power given to the Governor to make Ordinances in extra-ordinary situations had, in the manner of its exercise, taken over the primary law making function of the legislature in the state. The Constitution Bench deprecated the rule by Ordinances: the 'Ordinance-raj' 3•
2. The judgment of the Constitution Bench was delivered on 20 December 1986. Barely three years after the decision, the Governor of Bihar promulgated the first of the Ordinances which is in issue in this case, providing for the taking over of four hundred and twenty nine Sanskrit schools in the state, The services of teachers and other employees of the school were to stand transferred to the state government subject to certain conditions (which would be elaborated upon later in this judgment). The first Ordinance was followed by a succession of F Ordinances. None of the Ordinances, which were issued in exercise of the power of the Governor under Article 213 of the Constitution, were placed before the state legislature as mandated. The state legislature.did not enact a law in terms of the Ordinances. The last of them was allowed to lapse. -
33. Writ proceedings were initiated before the Patna High Court by the staff of the Sanskrit schools for the payment of salaries. Those proceedings resulted in a judgment of the Patna High Court. When the
Footnotes
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 189 [DR. D. Y. CHANDRACHUD, J.]
appeal against the decision of the High Court came up before a Bench A of two judges of this Court in Krishna Kumar Singh v. State ofBihar4, both the judges - Justice Sujata Manohar and Justice b P Wadhwa - agreed in holding that all the Ordinances, commencing with the second, were invalid since their promulgation was contrary to the constitutional position established in the judgment of the Constitution Bench. Justice B Sujata Ma~ohar held that the first Ordinance was also invalid being a part of the chain of Ordinances. Justice Wadhwa, however, held that the first Ordinance is valid and that its effect would endure until it is reversed by specific legislation. The difference of opinion between the two judges was in their assessment of the constitutional validity of the first Ordinance; one of them holding that it is invalid while the other held it to be constitutional.
44. When the case came up before a Bench of three judges>, it was referred to a Bench of five judges on the ground that it raised substantial questions relating to the Constitution. 6 The proceedings before the Constitution Bench on 23 November 2004 have resulted in a reference to a larger Bench of seven Judges. The basis of the reference is best understood from the order of reference which reads thus :
"During the course of hearing, Mr. P.P. Rao, learned senior counsel for the appellants placed reliance on the decisions of this Court in State ofOrissa vs. Bhupendra Kumar Bose, 1962 (Supp.2) SCR E 380 .and T.Venkata Reddy and Ors. vs. State of Andhra Pradesh, 1985 (3) SCC 198. The learned Solicitor General brought to the notice of this Court the decision in State of Punjab vs. Sat Pal Dang & Ors., 1969 ( 1) SCR 4 78. All these decisions are Constitution Bench decisions. Mr.Rakesh Dwivedi, learned senior counsel for the respondent-State ofBihar, however, relied on a 9- Judge Bench decision of this Court in S R Bommai and Ors. vs. Union of India and Anr., 1994 (3) SCC .1 and in particular paragraphs 283 to 290 thereof. We are of the opinion that these matters call for hearing by a 7- G Judge Bench of this Court. Be listed accordingly."
Footnotes
190 SUPREME COURT REPORTS [2017] 5 S.C.R.
A As the above extract indicates, the three decisions of Constitution Benches which have been noticed are those in Bhupendra Kumar Bose, T Venkata Reddy and Satpal Dang. The nine judge Bench decision in Bommai was relied upon, on the other hand by counsel for the State. Bommai, it has been urged, warrants a reconsideration of the earlier decisions. That has given rise to the reference. B B The Ordinances
55. The first Ordinance, called The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 - was promulgated by the Governor of Bihar on 18 December 19897 • c The Ordinance contains a recital of the satisfaction of the Governor that: "44 .... circumstances exist which render it necessary for him to take immediate action for the taking over of non-government Sanskrit schools for management and control by the State D Government for improvement, better organization and development of Sanskrit education in the State of Bihar." (Id at pg.665) Clause 3 of the Ordinance provided for the taking over of the management and control of four hundred and twenty nine Sanskrit schools (named in Schedule 1) by the state government. Clause 3 was as follows: E "3. Taking over of management and control of non-government Sanskrit schools by State Government - (I) With effect from the date of enforcement of this Ordinance 429, Sanskrit schools mentioned in Schedule I shall vest in the State Government and the State Government shall manage and control thereafter. F (2) All the assets and properties of all the Sanskrit schools mentioned in sub-section (I) and of the governing bodies, managing committees incidental thereto whether moveable or immovable including land, buildings, documents, books and registers, cash- balance, reserve fund, capital investment, furniture and fixtures and other things shall, on the date of taking over, stand transferred to and vest in the State Government free from all encumbrances." Clause 4 made a provision for the transfer to the state government of those teaching and non-teaching employees of the schools who were appointed permanently or temporarily against sanctioned posts in H 'Ordinance 32 of 1989
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 191 [DR. D. Y. CHANDRACHUD, J.]
accordance with the prescribed standard and staffing pattern prescribed A by the state government prior to the Ordinance. Staff in excess of the sanctioned strength and those not possessing the required qualifications or fitness were to stand automatically terminated. Clause 4 was in the following terms : "4 Effect of taking over the management and control-( 1) With B effect from the date of vesting of Sanskrit schools mentioned in Schedule 1 under Section 3( 1) in the State Government, the services of all those teaching and non-teaching employees of the schools mentioned in Schedule 1, who have been appointed permanently/temporarily against sanctioned posts in accordance with the prescribed standard, staffing pattern as prescribed by c the State Government prior to this Ordinance shall stand transferred to the State Government. He shall be employee of the State Government with whatsoever designation he holds: Provided, that the services of those teaching or non-teaching employees who are in excess of the sanctioned strength or do not D possess necessary fitness/qualification shall automatically stand terminated. (2) Teachers of the Sanskrit schools taken over by the Government shall be entitled to the same pay, allowances and pension etc. as are admissible to teaching and non-teaching employee of the taken- E over secondary schools ofBihar". Under clause 5, management and control of the schools taken over by the state government was to remain with the Director of Education of the Government, incharge of Sanskrit Education. The Ordinance made provisions for, among other things, the constitution of managing committees (clause 6), powers and functio!].S of managing committees (clause 7), functions of the Headmasters (clause 8), accounts and audit of the Sanskrit schools taken over by the State Government (clause 9), constitution of a Sanskrit Education Committee relating to development of Sanskrit education in the State (clause 10), offences and penalties for contravention of the provisions of the Ordinance (clause 11 ), cognizance of offences (clause 12), protection of action taken in good faith (clause 13), power to make rules (clause 14) and power to remove difficulties (clause 15).The schedule to the Ordinance listed out four hundred and twenty nine Sanskrit schools situated in several districts of the state. H
192 . SUPREME COURT REPORTS [2017] 5 S.C.R .
A Along side each school was the strength of standard teaching and non- teaching staff. ·
66. Ordinance 32 of 1989 was promulgated on 16 December 1989 and was published in the Bihar Gazette Extra ordinary on 18 December
1989. The life of the first Ordinance8 was for a period of two months B and two weeks since by virtue of the provisions of Article 213(2)(a) it ceased to operate at the expiration of six weeks from the reassembling of the 'legislature. The session of the Vidhan Sabha concluded on 25 January 1990. On 28 January 1990 the second in the succession of Ordinances was promulgated. The next session of the Vidhan Sabha was held between 16 March 1990 and 30 March 1990. On 2 May 1990 C the 'third in the succession of Ordinances 9 was promulgated. The next session of the Vidhan Sabha took place between 22 June 1990 and 9 August 1990, as a result of which the life of the Ordinance was about three months. The first, second and third Ordinances were in similar terms.
77. On 13 August 1990 the Governor promulgated a fresh Ordinance. 10 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 f9llows :- "3 Taking over of management and control of non-government E Sanskrit schools by State Government.-( l) 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. ... But the Sanskrit schools mentioned inAnnexure 1 of this Ordinance F will be investigated through the Collector concerned and if it will be found in the report of the Collector that such school is not in existence, in this case State Government will remove the name of that school fromAnnexure 1 of the Ordinance through notification in State Gazette. G (2) All the assets and properties of all the Sanskrit schools, mentioned in sub-section ( 1) and ofthe governing bodies, managing 'The Vidhan Sabha was convened for its 11th session which lasted from 29 June 1989 to 3 August 1989 after the Ordinance was promulgated, the 12th Session of the Vidhan Sabha commenced on 18 January 1990. •Ordinance 14of1990. H " Ordinance 21 of 1990
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 193 [DR. D. Y. CHANDRACHUD, J.]
committees, incidental thereto whether moveable or immovable A including lands, buildings, documents, books and registers, cash- balance, reserve fund, capital investment, furniture and fixture and other things, shall on the date of taking over, stand transferred to and vest in the State Government free from all encumbrances.
4. Effect of taking over the management and control.-( I) B 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. c (2) 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 validit)'. of posts sanctioned by governing body of the school, appointment procedure and affairs ofpromotions 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. (3) State Government, after gettingthe 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 also determine the place, salary, allowances and other service conditions for them". F Clause 16 provided for repeals and savings in the following terms: "16. Repeal and savings.-(!) The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1990 (Bihar Ordinance 14, 1990) is hereby repealed. G (2) Notwithstanding such repeal, anything done or any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of the pow~rs conferred by or under this Act as if this Act were in force on the date on which such thing was done or action taken." H
194 SUPREME COURT REPORTS [2017] 5 S.C.R.
A Since the next session of the Vidhan Sabha commenced on 22 November 1990 the life of the Ordinance was about four months and two weeks. The fifth in the series of Ordinances 11 was promulgated on 8 March
1991. The session of the Vidhan Sabha took place between 21 June 1991 and 2 August 1991. Soon after the conclusion of the session the sixth in the series of Ordinances was promulgated on 8 August 1991. 12 B The next session of the Vidhan Sabha took place from 1 December 1991to18 December 1991. Upon the conclusion of the session, the seventh of the Ordinances was promulgated on 21January1992.13 The. session of the Vidhan Sabha took place between 20 March 1992 and 27 March 1992. The Ordinance lapsed on 30 April 1992. ·c
88. 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, six weeks afterthe convening of the session of the legislative assembly. When the previous Ordinance ceased to operate, a fresh Ordinance was issued when the D 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 E subject was entirely governed by successive Ordinances; yet another illustration of 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.
F C Proceedings before the High Court
99. The High Court framed the following issues for consideration : (i) Whether the Sanskrit schools stood denationalised upon the expiry of the Ordinances; G (ii) Whether as a result of clause 4 of the fourth Ordinance 14 the employees had ceased to be government servants which they
Footnotes
KRlSHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 195 [DR. D. Y. CHANDRACHUD, J.]
have become in terms of the first Ordinance 15 promulgated A on 18 December 1989; (iii) Whether the fourth Ordinance was ultra vires Article 14 of the Constitution; (iv) Whether the services of the teachers must be regularised and they ought to be treated as government servants; and B
(v) Whether, in any event the petitioners were entitled to their salaries and emoluments.
1010. The High Court held that there was no permanent vesting of the schools in the State of Bihar, notwithstanding the expiry of the c Ordinances. In the view of the High Court, the power to promulgate Ordinances is not a rule but an exception and is conferred upon the Governor to deal with emergent situations. The High Comi 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. D 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 noted that the fourth Ordinance made a departure from the earlier Ordinances since the state government had found that many teachers who did not fulfil the requisite criteria would have become government servants. It was, in the view of the High Court, permissible for the state to modify a provision which had been made in an earlier Ordinance and only those who pas.sed the rigours of the provisions made in the fourth Ordinance were to become government servants. This finding was subject to the basic conclusion that all the Ordinances were unconstitutional. On the aspect of whether directions for the payment of salary were warranted, the High Court noted that upon inquiry three hundred and five schools were found to be genuine, while at least one hundred and one did not fulfil the criterion for being taken over. The High Court held that the petitioners were entitled to salary as government servants until 30 April 1992, the last date of the "Ordinance 32 of 1989 H
196 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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 management of the schools would be governed in the same manner that prevailed prior to the promulgation of the first Ordinance, D The two differing judgments
1111. Before the Bench of two judges of this Court 16, there was an agreement in the two separate judgments delivered by Justice Sujata V Manohar and Justice D P Wadhwa that commencing with the second ordinance, the re-promulgated Ordinances were ultra vires. Justice Sujata Manohar held that the manner in which a series of Ordinances c was promulgated by the State of Bihar constituted a fraud on the Constitution. In the view of the learned judge: "24 .... The State ofBihar has not even averred that any immediate action was required when the 1st Ordinance was promulgated. It has not stated when the Legislative Assembly was convened after the first Ordinance or any of the subsequent Ordinances, how long it was in session, whether thee Ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme does not pennit this kind of Ordinance Raj. In my view, all the Ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th and subsequent Ordinances notwithstanding. All are unconstitutional and invalid particularly when there is no basis shown for the exercise of power under Article 213. There is also F - no explanation offered for promulgating one Ordinance after another. If the entire exercise is a fraud on tlie power conferred by Article 213, with no intention of placing any Ordinance before the legislature, it is difficult to hold that the first Ordinance is valid, even though all the others may be invalid". (Id at pg.658) G Alternatively, on the hypothesis that the first Ordinance was valid, Justice Sujata Manohar held that it would have ceased to operate upon the lapse of a period of six weeks of the reassembling of the state legislature. Any effect that the Ordinance had would come to an end when it ceased, unless it is permanent. Addressing the issue of what is meant by a H "The Referring judgment is reported in (1998) 5 SCC 643:See paragraph 24 at page 161
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 197 [DR. D. Y. CHANDRACHUD, J.]
permanent effect or a right of an enduring nature which subsists beyond A the life of an Ordinance, the learned Judge held thus: "30 ... Every completed event is not necessarily permanent. What is done can often be undone. For example, what is constructed can be demolished. A benefit which is conferred can be taken away. One should not readily assume that an Ordinance has a B permanent effect, since by its very nature it is an exercise of a limited and temporary power given to the executive. Such a power is not expected to be exercised to bring about permanent changes unless the exigencies of the situation so demand. Basically, an effect of an Ordinance can be considered as permanent when that effect is irreversible or possibly, when it would be highly C impractical or against public interest to reverse it, e.g., an election which is validated should not again become invalid. In this sense, we consider as permanent or enduring that which is irreversible. What is reversible is not permanent." (Id at pg.660) D In this view, when the Ordinance taking over private schools lapsed, the status quo ante would revive. The first Ordinance was held not to have any permanent effect. Hence, even if the first Ordinance were to be valid (which in the view of the learned judge it was not), the teachers could be considered as government servants only for its duration. E Moreover, it was held that nothing was done under the first Ordinance; the inquiry for the purpose of take over under the fourth Ordinance could not be completed as a result of an interim stay and since all the Ordinances had ceased to operate and none of them could be considered as permanent in effect, no directions could be given for enforcing them. F
1212. Justice D P Wadhwa, on the other hand differed with the view of Justice Sujata Manohar 'in regard to the validity of the first Ordinance. The learned Judge formulated his reasons in the following propositions : "59 .... (1) It is fairly established that Ordinance is the "law" and G should be approached on that basis. (2) An Ordinance which has expired has the same effect as a temporary Act of the legislature. (3) When the Constitution says that Ordinance-making power is H
198 SUPREME COURT REPORTS [2017] 5 S.C.R.
A a legislative power and an Ordinance shall have the same fqrce as an Act, an Ordinance should be clothed with all the attributes of an Act of the legislature carrying with it all its incidents, immunities and limitations under the Constitution and it cannot be treated as an executive action or an administrative decision. B (4) Regard being had to the object of the Ordinance and the right created by it, it cannot be said that as soon as the Ordinance expired the validity of an action under the Ordinance came to an end and invalidity of that action revived. ( 5) What effect of expiration of a temporary Act would be must c depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. ( 6) If the right created by the temporary statute or Ordinance is of enduring character and is vested in the person, that right cannot D be taken away because the statute by which it was created has expired. (7) A person who has been conferred a certain right or status under temporary enactment cannot be deprived of that right or status in consequence of the temporary enactment expiring. E (8) An Ordinance is effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213. Even if it ceased to operate, the effect of the Ordinance is irreversible except by express legislation. (9) A mere disapproval by the legislature of an Ordinance cannot revive closed or completed transactions. (I 0) State Legislature is not powerless to bring into existence the same state of affairs as they existed before an Ordinance was passed even though they may be completed and closed matters under the Ordinance. An express Jaw can be passed operating retrospectively to that effect subject to other constitutional limitations." (id at pgs.677-678) In the view of the learned Judge: "67 ..... The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 199 [DR. D. Y. CHANDRACHUD, J.]
effect was irreversible. The Ordinance was promulgated to achieve a particular object of taking over the Sanskrit schools in the State including their assets and staff and this having been done and there being no legislation to undo the same which power the legislature did possess, the effect of the Ordinance was of permanent nature. The Ordinance is like a temporary law enacted by the legislature and if the law lapses, whatever has been achieved there under could not be undone, viz., if under a temporary law land was acquired and building constructed thereon, it could not be said that after the temporary law lapsed the building would be pulled down and land reverted back to the original owner". (Id at ~~) c In this view, rights which had been vested could not be taken away unless the legislature was to enact a law taking them away and re- vesting the property in the managing committee. The rights which had vested in the employees were held to be of an enduring character which, it was held, could not be taken away merely because the Ordinance, like D a temporary statute ceased to operate. Justice Wadhwa thus approached the matter in dispute from two perspectives. Firstly, the Ordinance was placed on the same footing as a temporary statute and was held to have created rights of an enduring character that would survive the Ordinance upon its ceasing to operate. Secondly, vested rights created under the Ordinance could, in this view, be reversed only by a fresh legislation E enacted by the legislature. The essential difference between the perspectives of the two judges was precisely this: while Justice Sujata Manohar held that all the Ordinances were part of a chain of promulgation and re-promulgation and constituted a fraud on the Constitution, Justice Wadhwa held that it was only the re-promulgation after the first Ordinance F that was ultra vires. The first Ordinance was in his view a valid exercise of constitutional power and had created enduring rights which would continue even after the Ordinance ceased to operate. This enduring consequence could only be reversed by legislation.
1313. Now it is in this background that it would be necessary to G advert to the evolution and scope of the Ordinance making power. E Historical evolution E.1 England
1414. In the United Kingdom, the prerogative of the Monarch to H
200 SUPREME COURT REPORTS [2017] 5 S.C.R.
A legislate domestically was set at rest about four hundred years ago by Sir Edward Coke by his opinion in The Case of Proclamations. 17 • The opinion ruled that : "The King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the B realm". The Law of England, it held, is divided into three parts : common law, statute law and custom. The King's proclamation was held to be none of the above. The King, it was ru!Cd, had no prerogative but that which the law of the land allowed him. The vestiges of the power of the King to c legislate upon British citizens were wiped out by the Bill of Rights in 1689 or in any event, by 1714. In his judgment in Pankina v Secretary of State for the Home Department, 18 Lord Justice Sedley speaking for the Court of Appeal observed : "The exercise of the Monarch's prerogative has passed since D 1689 - or perhaps more precisely, as Anson's Law and Custom of the Constitution suggests, since 1714 - to ministers of the Crown. It is they who are now constitutionally forbidden to make law except with the express authority of Parliament: hence their need for statutory power to make delegated legislation. As Lord Parker of Waddington said inThe Zamora [1916] 2 AC 77, 90: E "The ideas that the King in Council, or indeed any branch of the executive, has power to prescribe or alter the law to be administered by the courts of law in this country is out of harmony with the-principles of our Constitution"." (emphasis supplied) F
1515. Tracing the evolution of the King's power to make proclamations in England following the opinion of Sir Edward Coke, Shubhankar Dam in a recently published work on the subject 19 observes: "Although the decision brought conceptual clarity, regal practice varied. Monarchs continued making Ordinances (of the unlawful G kind) and enforced them too. Only with the establishment of parliamentary supremacy towards the end of the seventeenth 17 (1611) 12 Co Rep 74 IS[2010] 3 WLR 1526 19 Shubhankar Dam - "Presidential Legislation in India The Law and Practice of
H Ordinances [Cambridge University Press- page 144 at pages 37, 38]
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 201 [DR. D. Y. CHANDRACHUD, J.]
century did the law and practice of Ordinances finally become consistent; from then on, it would always be a subordinate legislative power... By the close of the seventeenth century, statutes represented parliament's ultimate authority to enact legislation whereas Ordinances, generally speaking, came to represent the executive's more limited authority to make narrow and specific regulations". E.2 · British India
1616. The dilution of the power of the MotMtch 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 c 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 oflaw. 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 oflndia 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 required to be laid before the legislature. The. Ordinance would cease to operate upon the expiration of six weeks from the reassembly of the legislature or ifbefore that period, resolutions disapproving it were passed by the legislature. The Governor General was in 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. Section 43 enabled the Governor General to issue Ordinances valid for a period of six months and extendable by a G further period of six months if he was satisfied that circumstances existed rendering it necessary for him to take immediate action to enable him to satisfactorily discharge such functions in respect of which he was to act in his discretion or individual judgment. Under Section 44, the Governor General was vested with power to enact in the form of a Governor General's Act, a law containing such provisions and to attach to his H
202 SUPREME COURT REPORTS [2017] 5 S.C.R.
A message to the chambers of the legislature a draft bill which he considered necessary. Similar powers were vested in the provincial Governors. Wide powers were hence conferred upon the Governor General by Sections 42, 43 and 44. Constituent Assembly
1717. The Union Constitution Committee was appointed by the Constituent Assembly on 30April 1947 to report on the 'main principles of the Constitution'. 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 c satisfaction that circumstances exist requiring immediate action. The ordinance would have the same force and effect as an Act of Parliament but would remain in force for a period not more than six weeks from the reassembly of Parliament [see in this context B Shiva Rao: The Framing of India's Constitution 20 ]. B N Rau acknowledged that D 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.
1818. After the report of the Union Constitution Committee was submitted to the Constituent Assembly, the ordinance making power came up for discussion on 23 May 1949. Professor KT Shah observed that however justified such a power may appear to be it was "a negation of the rule of law". He therefore suggested that the power should be so structured as to retain an extraordinary character to deal with emergent situations : " ... Of course in extraordinary circumstances, as in the case of an emergency, the use of extraordinary powers would be both necessary and justified. I think that it is important, therefore to make it clear, in the heading itself that this is an avowedly extraordinary power which may take the form of the legislation without our calling its legislative power. Legislative power the executive head should not have. Or it may even take the form of an executive decree or whatever form seems appropriate in the circumstances. The point that I wish to stress is that we must not, 20 H Universal Law Publishing New Delhi (2006) Vol .Tl page 485
KRISHNA KUMAR SINGH ~ ANR. v. STATE OF BIHAR 203 [DR. D. Y. CHANDRACHUD, J.].
by any mention here imply or convey or suggest that the law making powers of the President are any but extraordinary powers. I think this is sufficiently clear, and will be acceptable to the House." Another member of the Constituent Assembly, B Pocker Sahib, moved an amendment for the inclusion ofa proviso in draft Article 102(1) in the following terms : "Provided that such ordinance shall not deprive any citizen of his right to personal liberty except on conviction after trial by a competent court of law." This amendment was moved with a view to securing the fundamental c right of the citizen to be tried by a court oflaw.
1919. H V Karnath moved an amendment that would ensure that an ordinance upon promulgation shall be laid before both Houses of Parliament within four weeks of its promulgation. This, he observed, was necessary to restrict the. ordinance making power "as far as we D can" and to provide "a constitut}onal safeguard against the misuse of this article". This objection was responded to by observing that since Parliament had to be convened atleast twice every year and not more than six months would intervene between the last sitting and the date appointed for the next session, an ordinance could not continue for a E period of more than seven and a half months.
2020. Pandit H N Kunzru moved an amendment to the effect that the tenure of an ordinance should not exceed thirty days from its promulgation (instead of six weeks from the reassembly of Parliament). He observed that there were several countries in which the executive F did not possess an ordinance making power and there was no justification "in the new circumstances" for arming the executive with wide powers of the nature that were conferred by the Government oflndiaAct, 1935. He opined that the duration of seven and a half months was too long for the operation of an ordinance. Kunzru observed : G " .... .I think therefore that the period should be long enough to enable the legislature to meet and consider the extraordinary situation requiring the promulgation of an Ordinance, at any rate an Ordinance made necessary by factors affecting the peace or security of the country." H
204 SUPREME COURT REPORTS [2017] 5 S.C.R.
A "But when the ordinance relates to the peace or security of the country, or to similar circumstances, requiring extraordinary action to be taken by the executive under an Ordinance, then I think, we have to see that the period during which the Ordinance remains in force is as short as possible, and that any legislation that may be required should be B passed by Parliament after a due consideration of all the circumstances." "It is therefore necessary that the legislature should be given an opportunity, not merely of considering the situation requiring the passing of an Ordinance, but also the terms of c the Ordinance."
2121. Professor K T Shah expressed the view that even if an prdinance was issued to meet extraordinary circumstances, it must be laid immediately upon the assembling of Parliament and must cease to operate forthwith unless it was approved by a specific resolution. He D supported the restriction which he proposed on the following grounds : "Most of us, I am sure, view with a certain degree of dislike or distrust the ordinance-making power vested in the Chief Executive. However, we may clothe it, however it may necessary, however much it may be justified, it is a negation of the rule oflaw. That is E to say, it is not legislation passed by the normal Legislature, and yet would have the force of law which is undesirable. Even if it may be unavoidable, and more than that, even ifit may be justifiable in the hour of the emergency, the very fact that it is an extraordinary or emergency power, that it is a decree or order of the Executive F passed without deliberation by the Legislature, should make it clear that it cannot be allowed, and it must not be allowed, to last a minute longer than such extraordinary circumstances would require."
2222. Sardar Hukam Singh moved an amendment which provided G for the need for consulting the Council Of Ministers : "It may be said that conventions would grow automatically and the President shall have to take the advice of his Ministers. My submission is that here conventions have yet to grow. We are making our President the constitutional head and we are investing him with powers which appear dictatorial. Conventions would H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 205 [DR. D. Y. CHANDRACHUD, J.].
grow slowly and as this constitution is written and every detail is A being considered, why should we leave this fact to caprice or whim of any individual, however high he may be? If we clearly put down that he is to act on the advice of his Ministers, it is not derogatory to his position."
2323. The amendments which were proposed were opposed by P S B Deshmukh and Dr B R Ambedkar. P S Deshmukh observed that the draft article had a provision that if and so far as an ordinance made any . provision which Parliament would not under the Constitution be competent to enact, it shall be void. Dr Ambedkar, opposing the amendments, observed that while the Governor General under Section 43 of the G<;>vernment of India Act, 1935 was a parallel legislative authority c with an independent power oflegislation even when Parliament was in session draft Article I 02 conferred an ordinance making power upon the President only when the legislature was not in session. Justifying the conferment of the power Dr Ambedkar observed thus : "My submission to the House is that it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation arisen, which it must deal with ex hypothesi it has not got the power to deal with that in the existing code oflaw. The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hyhpothesi, the legislature is not in session." F
2424. Dr Ambedkar rejected the suggestion that an ordinance should automatically cpme to an e-nd upon the expiry o(thirty days from its promulgation. The objections expressed byH N Kunzruto the duration of an ordinance were not accepted on the ground that Parliament had to · be convened at intervals not exceeding six months. Moreover, he also G clarified that the President was to act on the aid and advice of the Council of Ministers. Draft Article 102 was accordingly approved. G The Ordinance making power
2525. Chapter N of the Constitution contains a single constitutional H
206 SUPREME COURT REPORTS [2017] 5 S.C.R.
A provision: Article 213. The title to Chapter IV is descriptive of the nature of the power. The power is described as the "Legislative power of the Governor". The marginal note to Article 213 describes it as a "power of Governor to promulgate Ordinances during recess oflegislature".
2626. The Constitution has followed the same pattern while B enunciating the Ordinance making power of the President. Chapter III contains a sole Article, Article 123 which specifies the "legislative power" of the President to promulgate Ordinances when Parliament is not in sess10n. Article 213 provides as follows : c "213. Power of Governor to promulgate Ordinances during recess of Legislature.-(!) 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 D circumstances exist which render it necessary for him to take immediate action, he may promulgate such Or.dinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if- E (a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or (b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the F President; or (c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President. G (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the 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 H
Report an error in this judgment →
Contains information from the Indian High Court / Supreme Court Judgments dataset, licensed under CC-BY-4.0