KRISHNA KUMAR SINGH & ANR v. STATE OF BIHAR & ORS.

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 207 [DR. D. Y. CHANDRACHUD, J.]

the Houses, and shall cease to operate at the expiration of six A weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and B (b) may be withdrawn at any time by the Governor. Explanation.-Where the Houses of the Legislature of a State paving a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the late_r of those dates for the purposes ofthis clause. c (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this D Constitution relating to the effect of an Act of the Legislature ofa State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature bf the State which has been reserved for the consideration of the President and assented to by him."

27Copy pinpoint27. The authority which is conferred upon the Governor to promulgate Ordinances is conditioned by two requirements. The first is that an Ordinance can be promulgated only when the state legislature is not in session. When the legislature is in session, a law can only be enacted by it and not by the Governor issuing an Ordinance. 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 existence of circumstances is an objective fact. The Governor is required to form a satisfaction of the existence of circumstances 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. The Governor H

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A may then promulgate an Ordinance "as the circumstances appear to him to require". Both these requirements indicate a constitutional intent to confine the power of the Governor to frame Ordinances within clearly mandated limits. The first limit describes the point in time when an Ordinance may be promulgated : no Ordinance can be issued when the B legislature is in session. The second requirement conditions the Ordinance , making power upon the prior satisfaction of the Governor of the existence of circumstances necessitating immediate· action. The power conferred upon the Governor is not in the nature of and does not make the Governor a parallel law making authority. The legislature is the constitutional repository of the power to enact law. The legislative power of the c Governor is intended by the Constitution not to be a substitute for the law making authority of duly elected legislatures. The same position would hold in relation to the Ordinance making power of the President. Article 213(1) also specifies the 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 D are: (i) Where a Bill containing the same provisions requires the previous sanction of the President, for its introduction into the legislature; E (ii) Where a Bill containing the same provisions would be deemed necessary by the Governor for being reserved for consideration of the President; and (iii) Where a law enacted by the state legislature containing the same provisions would require the assent of the President, F failing which it would be invalid.

28Copy pinpoint28. The first of the above conditions arises in a situation such as the proviso to A1iicle 304(b) of the Constitution.Under Article 304(b ), the legislature of a state is permitted to impose reasonable restrictions in the public interest on the freedom of trade, commerce or intercourse G with or within that state (notwithstanding anything in Articles 301 or 303). The proviso requires the previous sanction of the President before a Bill or amendment for the purposes of clause (b) can be introduced .in the state legislature. An illustration of the second requirement ((ii) above) is provided by Article 200 of the Constitution under which the Governor is required to reserve for consideration of the President any Bill whichin H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 209 [DR. D. Y. CHANDRACHUD, J.]

his opinion would, if it were to become a law, derogate from the powers A of the High Court so as to endanger the position which it is designed to fill by the Constitution. Situations where the ass.ent of the President is required ((iii) above) are illustrated by Article 254 where a law made by the state legislature on a matter enumerated in the Concurrent List (of the VII'h Schedule) is repugnant to a law made by Parliament. The state B. law will prevail only if and to the extent to which it has received the assent of the President. These three situations make it abundantly ~!ear ·that while exercising the power to promulgate an Ordinance, the Governor is not liberated from the limitations to which the law making power of the state legislature is subject.

29Copy pinpoint29. An Ordinance which is promulgated by the Governor has (as c clause 2 of Article 213 provides) the same force and effect as an Act of the legislature of the state assented to by the Governor. However - and this is a matter of crucial importance - clause 2 goes on to stipulate in the same vein significant constitutional conditions. These conditions have to be fulfilled before the 'force and effect' fiction comes into being. D These conditions are prefaced by the expression "but every such Ordinance" which means that the constitutional fiction is subject to what is stipulated in sub-clauses (a) and (b ). Sub-clause (a) provides that the Ordinance "shall be laid before the legislative assembly of the state" or before both the Houses in the case of a bi-camera! legislature. Is the requirement of laying an Ordinance before the state legislature mandatory? There can be no manner of doubt that it rs. The expression "shall be laid" is a positive mandate which brooks no exceptions. That the word 'shall' in sub-clause (a) of clause 2 ofArticle 213 is mandatory, emerges from reading the provision in its entirety. As we have noted earlier, an Ordinance can be promulgated only when the legislature is not in session. Upon the completion of six weeks of the reassembling of the legislature, an Ordinance "shall cease to operate". In other words, when the session of the legislature reconvenes, the Ordinance promulgated has a shelflife which expires six weeks after the legislature has assembled. Thereupon, it ceases to operate. In the case of a bi- cameral legislature where both the Houses are summoned to reassemble on different dates the period of six weeks is reckoned w.ith reference to the later of those dates. Article 174 stipulates a requirement that the state legislature has to be convened no later than six months of the ,, completion of its last sitting. Consequently, the constitutional position is H

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A that the life of an Ordinance cannot extend beyond a period six months and six weeks of the reassembling of the legislature. The importance which the Constitution ascribes to the reassembling of the legislature is because firstly, that date determines the commencement of the period of six weeks upon which.the Ordinance shall cease to operate. But there is a more fundamental significance as well, which bears upon the B mandate of an Ordinance being laid before the state legislature. An Ordinance will cease to operate within the period of six weeks of the reassembling of the legislature ifa resolution disapproving it is passed by the legislature. An Ordinance may also be withdrawn by the Governor at any time. The tenure of an Ordinance is hence brought to an end : c (i) Bl the Ordinance ceasing to operate upon the expiry of a period of six weeks of the reassembly of the legislature; or (ii) If the Ordinance is disapproved by a resolution of the state legislature in which event it ceases to operate on the resolution disapproving it being passed; or D (iii) In the event of the Ordinance being withdrawn by the Governor.

30Copy pinpoint30. The laying of an Ordinance before the legislature is mandatory. Textually, the sense that this is a mandatory requirement is conveyed by E the expression· "but every such Ordinance shall be laid before the legislative assembly". Though the Constitution contemplates that an · Ordinance shall have the same force and effect as a law enacted by the state legislature, this is subject to the Ordinance being laid before the state legislature and coming to an end in the manner stipulated in sub- clauses (a) and (b ). F

31Copy pinpoint31. Laying of an Ordinance before the state legislature subserves the purpose of legislative control over the Ordinance making power. Legislation by Ordinances is not an ordinary source oflaw making but is intended to meet extra-ordinary situations of an emergent nature, during the recess of the legislature. The Governor while promulgating an G Ordinance does not constitute an independent legislature, but acts on the aid and advice of the Council of Ministers under Article 163. The Council ofMinisters is collectively responsible to the elected legislative body to whom the government is accountable. The Constitution reposes the power of enacting law in Parliament and the state legislatures under Articles 245 and 246, between whom fields of legislation are distributed in the H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 211 [DR. D. Y. CHANDRACHUD, f.]

Seventh Schedule. Constitutional control of Parliament and the state legislatures over the Ordinance making power of the President (under Article 123) and the Governors (under Article 213) is a necessary concomitant to the supremacy of a democratically elected legislature. The reassembling of the legislature defines the outer limit for the validity of the Ordinance promulgated during its absence in session. Within that period, a legislature has authority to disapprove the Ordinance. The requirement oflaying 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 oflegislative powers and as an incident of those powers, the express constitutional authority to disapprove an Ordinance. C If an Ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions. Significantly, our Constitution does not provide that an Ordinance shall as-sume the character of a law enacted by the state legislature merely upon the passing of a resolution approving D it. In order to assume the character of enacted law beyond the tenure prescribed by Article 213(2)(a), a law has to be enacted. The placement of an Ordinance before the legislature is a constitutional necessity; the underlying 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. E

32Copy pinpoint32. The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the constitutional obligation imposed by Article 213(2). It is upon an Ordinance being laid before the House that it is formally brought to the notice of the legislature. Failure to lay the Ordinance is a serious infraction because 'it may impact upon the F ability of the legislature to deal with the Ordinance. We are not for a moment suggesting that the legislature cannot deal with a situation where the government of the day has breached its constitutional obligation to _lay the Ordinance before the legislature. The legislature can undoubtedly even in that situation exercise its powers under Article 213(2)(a). G However, the requirement of laying an Ordinance before the state legislature is a mandatory obligation and is not merely of a directory nature.· We shall see how in the present case a pattern was followed by the Governor ofBihar of promulgating and re-promulgating Ordinances, none of which was laid before the state legislature. Such a course of H

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A conduct would amount to a colourable exercise of power and an abuse of constitutional authority. Now it is in this background, and having thus far interpreted the provisions of Article 213, that it becomes necessary to refer to the precedents on the subject and to the nuances in the interpretation of the constitutional provisions.

B H Precedent H.1 Nature of the power

33Copy pinpoint33. The headings of both Chapters III and IV indicate that while promulgating Ordinances, the President under Article 123 and the c Governor under Article 213 exercise legislative powers. That an Ordinance "shall have the same force and effect" as a law enacted by the state legislature indicates that in terms of its operation and consequence, the Ordinance making power is placed on the same basis as law making power. While enacting legislation the law making body- whether it be Parliament or the state legislatures - are subject to constitutional limitations originating in (i) fundamental rights contained in Part III; (ii) distribution oflegislative powers between the Union and the States; and (iii) express constitutional limitations. Ordinances made by the President under Article 123 and by the Governors under Article 213 are subject to the same constitutional inhibitions. An Ordinance is susceptible of a challenge based on a violation of a guaranteed fundamental right and would be void to the extent of an infraction of a fundamental right guaranteed by Part III. Ordinances can be made by the President in areas which lie within the legislative competence of Parliament and by the Governors, in areas where the state legislatures are competent to enact law. Article 13 provides that a law shall be void to the extent of its inconsistency with Part 1II and for that purpose, the expression 'law' is defined in clause (3)(a) to include an Ordinance. Article 367(2) of the Constitution provides that: ·

"367 Interpretation G "(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be _construed as including a reference to an Ordinance made by the President or; to an Ordinance made by a Governor, as the case may be." H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 213 (DR. D. Y. CHANDRACHUD, J.]

Interpreting these provisions, a Constitution Bench of this Court in R.K. A Garg v. Union oflndia21 rejected the submission that while promulgating an Ordinance under Article 123 the President had no power to amend or alter tax laws. Dealing with the submission that the legislative power must exclusively belong to elected representatives and vesting such a power in the executive is undemocratic as it may enable the executive B to abuse its power by securing the passage of an ordinary Bill without risking a debate in the legislature, the Constitution Bench emphasised the constitutional limitations on the exercise of the ordinance making powers. Adverting to the speech made by Dr Ambedkar in the Constituent Assembly the Court noted "that the legislative power conferred on the President under this Article is not a parallel power oflegislation22 ". Among c the provisions that the Court emphasised are limitations on when the power can be exercised and the duration of an Ordinance. The Constitution Bench carefully emphasised the element oflegislative control in the following observations: " ... The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature can not only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive. There is in the theory of constitutional law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature". (id at paragraph 4, page 688)

34Copy pinpoint34. In the view of the Constitution Bench, "there is no qualitative . F difference between an Ordinance issued by the President and an Act passed by Parliament". The same approach was adopted by another Constitution Bench of this Court in AK Roy v. Union oflndia 23 where this Court spoke about "the exact equation, for all practical purposes, between a law ma<le by the Parliament and an ordinance issued by the G President"24 • The submission before the Court in a challenge to the validity of the National Security Ordinance was that an Ordinance is an exercise 21 (1981)4 sec 675 22 (Id at pg.687) "(1982) 1 sec 211 24 (id at para 14 page 290) H

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A of executive and not legislative power. While rejecting that submission, the Constitution Bench held that: "14 ... the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President. Both, equally, are products of the exercise oflegislative B power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power". (id at page 291) Both the decisions of the Constitution Bench in RK Garg and in AK Roy repelled the submission that the Ordinance making power is not c legislative in nature and character. Undoubtedly, the power to promulgate an Ordinance is a legislative power which has been conferred upon the President or, as the case may be, the Governors. It is, however, necessary to emphasise that when the decision in RK Garg speaks of there being "no qualitative difference" between an Ordinance issued by the President and an Act of Parliament and the decision in AK Roy speaks of the D "exact equation for all practical purposes" between the two, these observations are in the context of the principle that an Ordinance promulgated under Article 123 or Article 213 of the Constitution is subject to the same constitutional inhibitions which govern an enactment of the legislature. Both the decisions of the Constitution Benches have, E however, placed significant emphasis on the safeguards introduced by the Constitution to ensure against an abuse of power by the executive in exercising a legislative power while framing an Ordinance. The decision in RK Garg emphasised the element of legislative control over an Ordinance made by the executive. The Constitution Bench in AK Roy, while noting that the Constituent Assembly conferred an Ordinance F making power on the heads of the executive in the Union and the States as a "necessary evil"2', held thus : "16 ... That power was to be used to meet extraordinary situations and not perverted to serve political ends. The Constituent Assembly held forth, as it were, an assurance to the people that an G extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all events be made good and the balance struck by the founding fathers between the powers 25 [Id at para 16 page 292] H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 215 [DR. D. Y. CHANDRACHUD, J.]

of the government and the liberties of the people not disturbed or A destroyed". (id at pages 292-293)

35Copy pinpoint35. While the Constitution stipulates that an Ordinance shall have the same force and effect as a law enacted by the legislature, it is necessary to emphasise that the fiction which is created by Article 213(2) is subject to its provisions which are : firstly, the duration of an Ordinance B is limited until the expiration of a period of six weeks from the reassembly of the legislature; secondly, the duration of an Ordinance can be curtailed to a period even less than six weeks after the legislature has re-assembled, upon the passing of a resolution disapproving the Ordinance; and thirdly, the constitutional requirement that an Ordinance shall be laid before the legislature. Legislative control upon Ordinances made by the President C or by the Governors is central to the scheme ofArticles 213 and 123 and the constitutional fiction which ascribes to an Ordinance the same force and effect as a law enacted by the legislature is subject to sub-clauses (a) and (b) of clause 2 of Article 213. The expression "but" which precedes the formulation contained in sub-clauses (a) and (b) indicates D that the constitutional fiction is subject to the conditions that are prescribed in the constitutional provision. I Presidential satisfaction

36Copy pinpoint36. The constitutional power which has been conferred upon the President under Article 123 and upon the Governors under Article 213 E 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 Article 123) or the Governor (under Article 213) "that circumstances exist which render it necessary for him to take immediate action." F

37Copy pinpoint37. In RC Cooperv. Union oflndia 26 , a Bench of eleven Judges of this Court held that the presidential power to promulgate an ordinance is exercisable in extraordinary situations demanding immediate promulgation of law. This Court held that the determination by the President was not declared to be final. Justice JC Shah speaking for the G court observed thus : "23. Power to promulgate such Ordinance as the circumstances appear to the President to require is exercised-(a) when both Houses of Parliament are not in session; (b) the provision intended " (1970) 1 sec 248 H

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A to be made-is within the competence of the Parliament to enact; and ( c) the President is satisfied that circumstances exist which render it necessary for him to take immediate action. Exercise of the power is strictly conditioned. The clause relating to the satisfaction is composite: the satisfaction relates to the existence of circumstances, as well as to the necessity to B take immediate action on account of those circumstances. Determination by the President of the existence of circumstances and the necessity to take immediate action on which the satisfaction depends, is not declared final."( emphasis supplied) c Ho:vever, the issue had been rendered academic because the ordinance had been replaced by a legislative enactment. The justiciability of the satisfaction was not sonclusively decided.

38Copy pinpoint38. The Constitution (Thirty Eighth Amendment) Act, 1975 was brought into force on 1 August 1975 during the period of the internal D emergency. The amendment introduced, among other things, two crucial provisions into Articles q3 and 213 by which the satisfaction of the President or, as the case may be of the Governor, was declared to be final and conclusive and to be immune from being questioned ''in any court on any ground". Clause 4 of Article 123 provided as follows: E "24 .... Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause ( 1) shall be final and conclusive and shall not be questioned in any court on any ground." (Id at p. 295) By a similar amendment, clause 4 was introduced into Article 213. The F effect of the amendment was to grant an immunity from the satisfaction of the President or the Governor being subjected to scrutiny by any court. This amendment was expressly deleted by Section 16 of the Forty- fourth amendment.

39Copy pinpoint39. The. effect of this deletion (of clause 4) was urged before a G Constitution Bench of this Court in AK Royv. Union of lndia 27 , as a positive indicator that the satisfaction of the authority issuing an ordinance on the existence of circumstances necessitating immediate action was no longer final and conclusive and that it should be open to judicial scrutiny. In support, reliance was placed on the following observations H 21 (1982) 1 sec 211

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 217 [DR. D. Y. CHANDRACHUD, J.]

of Justice Shah and Justice Hegde in Madhav Rao v. Union oflndia 28 • A Justice Shah observed thus : "25 .... Constitutional mechanism in a democratic polity does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully B constituted courts." (Id at p.296) Justice Hegde observed thus : "25 ....There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens." (id at p. 296) c In AK Roy, Chandrachud, CJ speaking for the Constitution Bench hel_d that the issue as to whether the conditions for the exercise of the power under Article 213 had beenfulfilled could not be regarded as a political question: D "26.Wc see the force of the contention that the question whether the pre-conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question. The doctrine of the political question was evolved in the United States ofAmerica on the basis ofits Constitution which has adopted the system of a rigid separation of power, unlike ours." (Id at p. E 296) The Constitution Bench held that the earlier case, State ofRajasthan v. Union of India 29 was decided at a time when the presidential satisfaction under clause I of Article 123 had been made final by the thirty-eighth amendment. This Court held that.it is arguable that after the forty-fourth amendment, judicial review of the President's satisfaction is not totally excluded. The observations of Chandrachud, CJ, speaking for the Constitution Bench are thus : "27. The Rajas than case [State of Rajas than v. Union pf India, ( 1977) 3 SCC 592 : ( 1978) 1 SCR 1] is often cited as an authority for the proposition that the courts ought not to enter the "political thicket". It has to be borne in mind that at the time when that case was decided, Article 356 contained clause (5) which was inserted 28 (1971) 3 SCR 9 29 ( 1978) l SCR 1 H

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A by the 38thAmendrnent, by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground. Clause (5) has been deleted by the 44thAmendment and, therefore, any observations made in the Rajasthan case [State of Rajasthan v. Union of India, (1977) 3 SCC 592 : (1978) 1 B SCR 1] on the basis of that clause cannot any longer hold good. It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President satisfaction.(Id at p. 297) (emphasis supplied) C However, in the ultimate analysis, the court declined to go into the question as regards the justiciability of the President's satisfaction under Article 123(1) since, on the material placed before it, it was not possible for the court to arrive at a conclusion one way or the other. The impact of the forty-fourth amendment was noticed by Justice Jeevan D Reddy in the nine judge bench decision In S R Bommai v. Union of India 30 : "379 ... We, however, agree that the deletion of this clause is certainly significant in the sense that the express bar created in the way of judicial review has since been removed consciously E and deliberately in exercise of the constituent power of Parliament. (See A.K. Roy v. Union of India [(I 982) 1 SCC 271 : 1982 SCC (Cri) 152: (1982) 2 SCR 272] ). The cloud cast by the clause on the power of judicial review has been lifted." (Id at p. 270) As the above extract indicates, the observations in A K Roy found a F specific reference, in Bommai. The court while construing the provisions ofArticle 356 noted that clause 5 which expressly barred the jurisdiction of the courts to examine the validity ofa proclamation had been deleted by the forty-fourth amendment to the Constitution. Elucidating the approach of the court, when a proclamation under Article 356 is G questioned, Justice Jeevan Reddy held that : "373. Whenever a Proclamation under Article 356 is questioned, the court will no doubt start with the presumption that it was validly issued but it will not and it should not hesitate to interfere ifthe invalidity or unconstitutionality of the Proclamation is clearly made H -' 0 (1994) 3 sec 1

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 219 [DR. D. Y. CHANDRACHUD, J.]

out. Refusal to interfere in such a case would amount to abdication of the duty cast upon the court- Supreme Court and High Courts - by the Constitution." (Id at p.266-267) r The standard of judicial review was formulated in the following observations : "374 ..... the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the c Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power --: cases where this power is invoked for achieving oblique ends." (Id at p. 268)

40Copy pinpoint40. Applying the principles which emerge from the judgment of D Justice Jeevan Reddy in Bommai, there is reason to hold that the satisfaction of the President under Article 123(1) or of the Governor under Article 213(1) is not immune from judicial review. The power of promulgating ordinances is not an absolute entrustment but conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action. Undoubtedly, as this Court held in Indra Sawhney E v. Union of lndia 31 the extent and scope of judicial scrutiny depends upon the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions involved and such factors. Since the duty to arrive at the satisfaction rests in the President and the Governors (though it is exercisable on the aid and advice of the Council of Ministers), the Court must act with circumspection when the satisfaction under Article 123 or Article 2 I 3 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 ifthere 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. Jn exercising the power ofjudicial review, the court must be mindful both of its inherent limitations as well as of the entrustment of the power to the head of the executive who " (1992) Supp. (3J sec 217 H

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A acts on the aid and advice of the Council of Ministers owing collective responsibility to the elected legislature. In other words, it is only where the court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court may be warranted in a rare case. However, absolute immunity from B judicial review cannot be supported as a matter of first principle or on the basis of constitutional history. J Re-promulgatio11

41Copy pinpoint41. The judgment in D C Wadhwa adopted as its rationale, the title and theme of the work from which the case arose. In this section, c we address the basis for holding that an act of a constitutional functionary is construed to be a fraud on the Constitution. Why does the repetition of an act which is permissible initially, become a transgress-ion of constitutional limits? The judgment in D C Wadhwa aside, we consider the issue of re-promulgation on first principle in the first section. In the second section, we analyse the decision of the Constitution Bench and explore its logic and limitations.

J.1 The constitutional principles

42Copy pinpoint42. The rationale for the conferment of a power to promulgate ordinances upon the President and the Governors is that the law, particularly a compact of governance, would not accept a state of constitutional vacuum. The legislature is not always in session. Convening it requires time. In the meantime, unforeseen events may arise which need legislative redressal. An ordinance can be promulgated only when the legislature is not in session. But the legislature has to be convened at an interval of no later than six months. The life of an ordinance is restricted in time: six weeks after the reassembly of the legislature, it ceases to operate. Even within this period, a resolution can be passed by the legislature disapproving of the ordinance promulgated in its absence. In such an event, an ordinance made by the Governor on the aid and advice of the Cabinet ceases to operate. The constitutional conferment of a G power to frame ordinances is in deviation of the normal mode oflegislation which takes place through the elected bodies comprising of Parliament and the state legislatures. Such a deviation is permitted by the Constitution to enable the President and Governors to enact ordinances which have the force and effect of law simply because of the existence of

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 221 [DR. D. Y. CHANDRACHUD, J.]

circumstances which can brook no delay in the formulation oflegislation. A In a parliamentary democracy, the government is responsible collectively to the elected legislature. The subsistence of a government depends on the continued confidence of the legislature. The urdinance making power is subject to the control of the legislature over the executive. The accountability of the executive to the legislature is symbolised by the B manner in which the Constitution has subjected the ordinance making power to legislative authority. This, the Constitution achieves by the requirements ofArticle 213. The first requirement defines the condition subject to which an ordinance can be made. The second set of requirements makes it mandatory that an ordinance has to be placed before the House of the legislature. The third requirement specifies the c tenure of an ordinance and empowers the legislature to shorten the duration on the formulation of a legislative disapproval. Once the legislature has reconvened after the promulgation of an ordinance, the Constitution presupposes that it is for the legislative body in exercise of its power to enact law,.to determine the need for the provisions which the ordinance incorporates and the expediency of enacting them into · legislation. Once the legislature has convened in session, the need for an ordinance is necessarily brought to an end since it is then for the legislative body to decide in its collective wisdom as to whether an ordinance should have been made and if so, whether a law should be enacted.

43Copy pinpoint43. A reasonable period is envisaged by the Constitution for the continuation ofan ordinance, after the reassembling of the legislature in order to enable it to discuss, debate and determine on the need to enact a law. Re-promulgation of an ordinance, that is to say the promulgation of an ordinance again after the life of an earlier ordinance has ended, is fundamentally at odds with the scheme of Articles 123 and 213. Re- F promulgation postulates that despite the intervening session of the legislature, a fresh exercise of the power to promulgate an ordinance is being resorted to despite the fact that the legislature which was in seisin of a previously promulgated ordinance has not converted its provisions into a regularly enacted law. What ifthere is an exceptional situation in which the House of the legislature was unable to enact a legislation G along the lines of an ordinance because of the pressure of legislative work or due to reasons? Would the satisfaction of the Governor on the need for immediate action be arrived at for an act of re-promulgation, after a legislative session has intervened? H

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44Copy pinpoint44. Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source oflaw 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 Governors. The danger of re-promulgation lies in the threat which it B 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. c J.2 DCWadhwa

45Copy pinpoint45. The judgment of the Constitution Bench in DC Wadhwa v. State of Bihar32 held that the re-promulgation of ordinances by the State ofBihar constituted a fraud on the Constitution. Adverting to the scheme of the Constitution, the Constitution Bench observed thus: D "6 .... The primary law making authority under the Constitution is the legislature and not the executive but it is possible that when the legislature is not in session circumstances may arise which render it is necessary, to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordinances. But every ordinance promulgated by the Governor must be placed before the legislature and it would cease to operate at the expiration of six weeks from the reassembly of the legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any. The object of this provision is that since the power conferred on the Governor to issue ordinances is an emergent power exercisable when the legislature is not in session, an ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life .... " "The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed H "(I 987) 1 sec 378

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 223 [DR. D. Y. CHANDRACHUD, J.]

to be "perverted to serve political ends". It is contrary to all ·A democratic norms that the executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the B ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the legislature. The Constitution- makers expected that ifthe provisions of the ordinance are to be continued in force, this time should be sufficient for the legislature to pass the necessary Act. But if within this time the legislature does not pass such an Act, the ordinance must come to an end. c The executive cannot continue the provisions of the ordinance in force without going to the legislature. The law-making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and ifthe executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the legislature, it would be nothing short of Susurpation by the executive of the law-making function of the legislature. The executive cannot by taking resort to an emergency power exercisable by it only when the legislature is not in session, take over the law-making function of the legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive." (Id at p. 392) The re-promulgation of ordinances was held to be a colourable exercise of power. The Constitution Bench held that the executive in the State of Bihar had almost taken over the role of the legislature in making laws, not for a limited period but for years together in disregard of constitutional limitations. This Court warned that there must not be an ordinance raj in the country : G "6 ...... When the constitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the ordinance to be continued in H

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A force beyond the period of six weeks has to go before the legislature which is the constitutional authority entrusted with the law-making function, it would most certainly be a colourable exercise of power for the government to ignore the legislature and to repromulgate the ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance made by the executive." (Id at B p. 394) The limitation of the decision in D C Wadhwa is that having spelt out constitutional doctrine, the Constitution Bench ended only with a 'hope and trust' that law making through re-promulgated ordinances would not become the norm. That trust has been belied by the succession of re- c promulgated ordinances in this case. The ultimate direction was to set aside one ordinance on intermediate education, which still held the field. D C Wadhwa did not address itself to the legal status of action taken under an ordinance which has lapsed on the expiry of its tenure or on being disapproved. Does action initiated under an ordinance survive the end of an ordinance which has not been adopted into an act of the legislature? That is the issue to which we turn now. K Life beyond death : the conundrum of enduring effects

46Copy pinpoint46. Article 213(2)( a) postulates that an ordinance would cease to operate upon the expiry of a period of six weeks of the reassembly of the legislature. The Oxford English dictionary defines the expression "cease" as 33 : "to stop, give over, discontinue, desist; to come to the end."P Ramanatha Aiyar's, The Major Law Lexicon34 defines the expression "ceas1:" to mean "discontinue or put an end to". Justice C K Thakker's Encyclopaedic Law Lexicon 35 defines the word F "cease" as meaning: "to put an end to; to stop, to terminate or to discontinue". The expression has been defined in similar terms in Black's Law Dictionary36 •

47Copy pinpoint47. In a judgment of a Division Bench of the Andhra Pradesh High Court in Mahanat Narayan Dessjivaru v. State of Andhra 37 , it G was held that once a scheme and a sanad were no longer operative, the rights, if any, accruing there from were extinguished. There was no 33 The Oxford English Dictionary (TI Edition): Clarendon Press, pg. 1014 34 The Major Law Lexicon (IV Edn. Pg. 1053) 35 Ashoka Law House, New Delhi (india) pg. 879 36 XthEdn. Pg. 268 37 AIR (1959) AP 471 H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 225 [DR. D. Y. CHANDRACHUD, J.]

scope for importing any notion of suspension into that expression. A A discontinuation took effect "once for all 38 ".

48Copy pinpoint48. The expression "cease to operate" in Article 213(2)(a) 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 resolution has been passed by the legislature disapproving of an B 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.

49Copy pinpoint49. The expression "disapproval" is defined in P Ramanatha c Aiyar's Law Lexicon (supra) as being sometimes used in the sense of formally refusing a sanction or annulling in consequence of the feeling of disapprobation. Black's Law Dictionary 39 defines disapproval as "a negative decision or attitude towards someone or something."

50Copy pinpoint50. The issue before the court is of the consequence of an ordinance D terminating on the expiry of a period of six weeks or, within that period, on a disapproval by the legislature. 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 revival of the state of affairs which existed before the ordinance was promulgated? E Would the legal effects created by the ordinance stand obliterated as a matter oflaw upon the lapsing of an ordinance or passing of a resolution of disapproval? There are two constructions which need to be analysed. Each of them lies at two opposing ends. At one end of the spectrum is the view that once the legislature has expressed its disapproval by a resolution, the state ofaffairs which the ordinance brought about stands F dissolved and that which existed on the eve of the ordinan,ce stands revived. In this view, disapproval amounts to an obliteration of the effect of all that had transpired in the meantime. At the other end of the 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 G (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

" Id at para 28, pg. 474 " I OthEdn. Pg. 268 H

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A 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. B

51Copy pinpoint51. Before the position is examined as a matter of first principle, it would be appropriate to examine the precedent emanating from this Court. In State of Punjab v. Mohar Singh,40 an ordinance was promulgated by the Governor of East Punjab under Section 88 of the Government of India Act, I 935, for the registration of land claims of c refugees from East Punjab. The respondent purporting to be a refugee from West Pakistan filed a claim under the ordinance.The ordinance was repealed and an Act was passed by the East Punjab legislature re- enacting all the provisions of the repealed ordinance. The respondent was prosecuted under the Act on the ground that his claim had been found to be false and no land in fact belonged to him in West Pakistan. The respondent was convicted of an offence under the Act and sentenced to imprisonment. The District Magistrate considering the sentence to be inadequate, referred the case to the High Court. The respondent raised a preliminary objection on the ground that the offence had been committed against the ordinance before the Act had come in to being and the prosecution was commenced long after the ordinance had come to an end. This contention was accepted by a Division Bench of the High Court which set aside the conviction and sentence. The High Court held that Section 6 of the General Clauses Act is attracted only when an Act is repealed simpliciter but not when a repeal is followed by a re- F enactment. The repealing act, it was held, did not provide that an offence which was committed when the ordinance was in force could be punished after its repeal. In appeal, this Court noted in a decision of three Judges that the prosecution was initiated against the respondent not under the ordinance but under the provisions of the Act. The offence was committed when the Act was not in force. The court held that no person could be G prosecuted or punished under a law which came into existence subsequent to the commission of an offence. But the issue which still survived was whether the respondent could be prosecuted and punished under the ordinance after it was repealed. This Court observed that :

40 H AIR (1955) SC 84

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 227 [DR. D. Y. CHANDRACHUD, J.]

"8 ..... Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General C Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation." The offence committed by the respondent consisted in filing false claim under the provisions of the ordinance. The claim was filed under the ordinance and any false information in regard to such a claim was a D punishable offence under the ordinance. Under the proviso to Section 4 of the Act, a claim filed under the ordinance would be treated as one filed under the Act, with all consequences attached to it. A refugee who had previously submitted a claim under the ordinance was not reqaired to submit another claim in respect of the same land. Such a claim would be registered as a claim under the Act. Hence, it was held that the E incidents attached to the filing of a claim, as laid down in the Act must necessarily follow. If the information given by the claimant was false, he could be punished under the provisions of the Act. This Court held : "9 ..... Ifwe are to hold that the penal provisions contained in the Act cannot be attracted in case of a claim filed under the Ordinance, F the results will be anomalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour, such allotment could not be cancelled under Section 8 of the Act. We think that the provisions of Sections 47 and 8 make it apparent that it was not the intention of the Legislature that the rights and G liabilities in respect of claims filed under the Ordinance shall be extinguished on the passing of the Act, and this is sufficient for holding that the present case would attract the operation of Section 6 of the General Clauses Act."

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A The conviction and sentence were restored and the judgment of the High Court was set aside (enhancement was also refused). The decision in Mohar Singh involved a case where an ordinance (under which a false claim had been filed) was repealed by an Act of the legislature. The Act was interpreted to mean that the claim which was filed under the ordinance would be reckoned as a claim under the Act. Once this B was so, rights and liabilities in respect of claims filed under the ordinance were held not to be extinguished despite repeal.

52Copy pinpoint52. The judgment in Mohar Singh drew sustenance from the provisions of Section 6 of the General Clauses Act. This Court held that when an enactment is repealed, the consequences envisaged in Section c 6 of the General Clauses Act will follow unless a contrary iatention appears. This principle is not inapplicable merely because a repeal is followed by a fresh enactment. The court found as a matter of statutory construction that the rights and liabilities under an ordinance which had been repealed did not stand extinguished on the enactment of a fresh legislation.

53Copy pinpoint53. Section 6 of the General Clauses Act provides as follows: "Section 6. Where this Act or any Central Act or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

*** (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or F (d) affect any penalty, forfeiture or punishment incmTed in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid''.

54Copy pinpoint54. Section 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 (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 H a legislation results from a positive or affirmative act of the legislative

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 229 [DR. D. Y. CHANDRACHUD, J.]

body based on its determination that the law is no longer required. Repeal A 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. Section 6 of the General Clauses Act protects rights, privileges and obligations and continues liabilities in cases of repeal of an enactment. The issue as to whether rights, privileges, obligations B and liabilities which have arisen under an ordinance which has ceased to operate would endure is not answered by Section 6 of the General Clauses Act. What then is the touch-stone on which this question should be resolved?

55Copy pinpoint55. In State of Orissa v. Bhupendra Kumar Bose41 , elections to a municipality were set aside by the High Court on a defect in the c publication of the electoral roll. The Governor ofOrissa promulgated an ordinance by which the elections were validated together with the electoral rolls. A Bill was moved in the state legislature for enacting a law in terms of the provisions of the ordinance but was defeated by a majority of votes. The State ofOrissa filed an appeal before this Court D against the decision of the High Court striking down material provisions of the ordinance. Before this Court, it was urged on behalf of the respondent that the ordinance was in the nature of a temporary statute which was bound to lapse after the expiration of the prescribed period. It was urged that after the ordinance had lapsed, the invalidity cf the elections which it had cured stood revived. It was in the above background that this Court addressed itself to the question as to whether a lapse of the ordinance affected the validation of the elections under it. Justice Gajendragadkar, writing the opinion of a Constitution Bench held that the general rule in regard to a temporary statute is that in the absence of a special provision to the contrary, proceedings taken against a person under it will terminate when the statute expires. That is why the legislature adopts a savings provision similar to Section 6 of the General Clauses Act. But in the view of the court, it would not to be open to the ordinance making authority to adopt such a course because of the limitation imposed by Article 213(2)(a). The Constitution Bench relied upon three English judgments: Wicks v. Director of Public Prosecutions 42 ; Warren v. G Windle 43 ; and Steavenson v. Oliver44 . 41 (1962) Supp. (2) SCR 380 42 (1947) A.C. 362 43 (1803) 3 East 205, 211-212: 102 E.R. (K.B.) 578 44 151E.R.1024, 1026-1027 H

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A Having adverted to these English decisions, the Constitution Bench held thus: "21.. .. .In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act B and upon their character whether the said right and liability are enduring or not." The 'enduring rights' theory which had been applied in English decisions to temporary statutes - was thus brought in while construing the effect of an ordinance which has ceased to operate. In the view of the Constitution Bench : c "21 .... Therefore, in considering the effect of the expiration ofa temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person that right cannot be taken away because the statute by which it was created has expired. If a D penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter." The court held that the validation of the municipal elections was not E intended to be temporary in character which would last only during the lifetime of the ordinance. The rights created by it were held to endure and last even after the expiry of the ordinance. Consequently, the lapsing of the ordinance would not result in the revival of the invalidity of the election which the ordinance had validated.

56Copy pinpoint56. This reasoning was followed by a Constitution Bench in T Venkata Reddy v. State of Andhra Pradesh 4'. In that case, an ordinance was promulgated by the Governor ofAndhra Pradesh to abolish posts of a part-time village officer. The ordinance was not replaced by an Act but was succeeded by four other ordinances. The submission before the High Court was that upon the lapsing of the ordinances (the G legislature not having passed an Act in its place) the posts which were abolished would stand revived. The Constitution Bench held that : "14 ...... An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When H "(1985) 3 sec 198

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 231 [DR. D. Y. CHANDRACHUD, J.]

the Constitution says that the Ordinance-making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution." (Id at p. 211) This Court held that an ordinance is not rendered void at its commencement merely because it has been disapproved by the legislature: "19 .... .It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it shall cease to c operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213." (Id at p. 214) The abolition of the posts of part-time village officer was held to be an established fact. If the legislature intended to bring back the post as it existed before the promulgation of the ordinance, the court held that a law would have to be enacted by the state legislature : "20. We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an Ordinance was p[:ssed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to the other constitutional limitations. A mere disapproval by Parliament or the State Legislature of an Ordinance cannot, however, revive closed or completed transactions." (Id at p. 216) F

57Copy pinpoint57. The basic premise of the decision in Bhupendra Kumar Bose is that the effects of an ordinance can be assessed on the basis of the same yardstick that applies to a temporary enactment. There is a fundamental fallacy in equating an ordinance with a temporary enactment. A temporary Act is a law which is enacted by the legislature - Parliament G or the state legislature- in exercise of its plenary powers. While enacting a law, 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. Hence, it lies perfectly within the realm and competence of the legislature which enacts a H

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A temporary law to provide that the rights or the liabilities which are created during the tenure of the law will subsist beyond the expiry of its term. The legislature which has the competence to enact a law unrestricted by tenure is equally competent to enact a tempora1y legislation in which it can convey a legislative intent that the rights or obligations which will be created will continue to subsist even upon its expiry. An ordinance is B 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 for a period of not more than six weeks c 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 competent legislature which has plenary powers to enact a law cannot be equated with a temporary enactment. The basic error, if we may say so with respect, in the judgment in Bhupendra Kumar Bose lies in its placing an ordinance on the same pedestal as a D temporary enactment. The judgement in T Venkata Reddy follows the rationale of Bhupendra Kumar Bose. Having done that, the Constitution Bench proceeded to hold that if Parliament or the state legislatures intend to revive the state of affairs which existed before the ordinance was promulgated, it would have to bring a law which has E retrospective effect. A disapproval by the legislature, it was held cannot revive completed transactions. The effect of the judgment in TVenkata Reddy is to place ordinances in a privileged position and to disregard the supremacy of Parliament. By way of an illustration, take a situation where an ordinance has overridden rights created by a duly enacted legislation. If the ordinance lapses, the decision in T Venkata Reddy F would posit that the consequences which have ensued under the ordinance can only be reversed by a retrospective legislation enacted by Parliament which restores status quo ante. In a hierarchical sense, this virtually subordinates the position oflegislation in relation to ordinance making powers. The basis and foundation of the two Constitution Bench decisions G cannot be accepted as reflecting the true constitutional position.

58Copy pinpoint58. What then is the effect upon rights, privileges, obligations or liabilities which arise under an ordinance which ceases to operate? There are two critical expressions in Article 213(2) which bear a close analysis. The first is that an ordinance "shall have the same force and effect" as H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 233 [DR. D. Y. CHANDRACHUD, J.]

an act of the legislature while the second is that it "shall cease to operate" A on the period of six weeks of the reassembling of the legislature or upon a resolution of disapproval. The expression "shall have the same force and effect" is prefaced by the words "an ordinance promulgated under this article". In referring to an ordinance which is promulgated under Article 213, the Constitution evidently conveys the meaning that in order B to have the same force and effect as a legislative enactment, the ordinance must satisfy the requirements of ArtiC!e 213. Moreover the expression "shall have the same force and effect" is succeeded by the expression "but every such ordinance .. " shall be subject to what is stated in sub-clauses(a) and (b). The pre-conditions for a valid exercise of the power to promulgate as well as the conditions subsequent to c promulgation are both part of a composite scheme. Both sets of conditions have to be fulfilled for an ordinance to have the protection of the 'same force and effect' clause. Once the deeming fiction operates, its consequence is that during its tenure, an ordinance shall operate in the same manner as an act of the legislature. What is the consequence of an ordinance ceasing to operate by virtue of the provisions of Article 213(2)(a)? There are two competing constructions which fall for consideration. The expression "shall cease to operate" can on the one hand to be construed to mean that with effect from the date on which six weeks have expired after the reassembling of the legislature or upon the disapproval of the ordinance, it would cease to operate from that date. 'Cease' to operate in this sense would mean that with effect from that date, the ordinance would prospectively have no operation. The ordinance is not void at its inception. The second meaning which can be considered for interpretation is that the expression "shall cease to operate" will mean that all legal consequences that arose during the tenure of the ordinance would stand obliterated. According to the second construction, which is wider than the first, the consequence of an ordinance having ceased to operate would relate back to the validity of an ordinance.

59Copy pinpoint59. Now, one of the considerations that must be borne in mind is that Article 213 has not made a specific provision forthe saving ofrights, privileges, obligations or liabilities that have arisen under an ordinance which has since ceased to operate either upon the expiry of its term or upon a resolution of disapproval. Significantly, there are other provisions of the Constitution where, when it so intended, the Constitution has made express provisions for the saving of rights or liabilities which arise under H

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A a law. Under Article 352(4) every resolution for the proclamation of an emergency has to be laid before each House of Parliament and will "cease to operate" on the expiration of one month unless it has been approved during that period by resolutions of both Houses of Parliament. Under clause 5 ofArticle 352, a proclamation thus approved shall, unless it is revoked, "cease to operate" on the expiration of a period of six B months. When a proclamation of emergency is in operation Parliament is conferred with the power to make laws even with respect to matters in the state list. A1iicle 358(1) provides that when a proclamation of emergency is in force, nothing in Article 19 shall restrict the power of the state as defined in Part III to make any law which the state but for c the provisions of Part III would be competent to make. However any law so made shall to the extent of its incompetency cease to have effect as soon as the proclamation ceases to operate "except as respects things done or omitted to be done before the law so ceases to have effect". Similarly Article 359( 1) provides that during the operation of a proclamation of emergency the President may declare that the right to move a court for the enforcement of rights conferred by Part III (except Articles 20 and 21) shall remain suspended. However, Article 359( lA) provides that any law made shall to the extent of the incompetency with Part III cease to have effect as soon as the order aforesaid ceases to operate "except as respects things done or omitted to be done before the law so ceases to have effect".

60Copy pinpoint60. The nature of the power of the President and the structure of the emergency provisions is undoubtedly different from the ordinance making powers under Articles 123 and 213. However, it is significant to note that while making a provision that a parliamentary law would cease to operate after a proclamation of emergency is revoked, the Constitution Bench has provided for an express saving clause in Articles 358( I) and 359(1 )(A). Such a provision was necessary because the effect of the proclamation of emergency is to enable Parliament to enact legislation without the restraint ofArticle 19. But for it, a law which offends Article 19 would be void under Article 13. Once the proclamation ceases to operate, the law made ceases to have effect. Hence, a specific savings provision has been made as respects things done or omitted to be done when the law was in operation.

61Copy pinpoint61. Similarly, a presidential proclamation under Article 356( I )(b) may declare that the powers of the legislature of the state shall be H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 235 [DR. D. Y. CHANDRACHUD, J.]

exercisable by or under the authority of Parliament. Every such A proclamation is required to be laid before each House of Parliament and will cease to operate on the expiration of two months, unless it has been approved by resolutions of both Houses of I'arliament. Under Article 357, any law made by Parliament in exercise of the power of the state legislature, which it would not have been competent to make but for a B proclamation under Article 356 shall continue in force even after the cessation of the proclamation until it is altered or repealed or amended by a competent legislature. This is a situation where the Constitution has provided for the continuation of a law even after the cessation of a proclamation.

62Copy pinpoint62. Article 249 enables Parliament t6' legislate on matters c enumerated in the state list if the Council of States has declared by a resolution supported by not less than two thirds of its members present and voting that it is necessary or expedient in the national interest that Parliament should make laws on a subject in the state list. Similarly, under Article 250, Parliament is empowered, while a proclamation of emergency is in operation, to make laws with respect to any matter in the state list. Article 249(3) and Article 250(2) however, stipulate that the law enacted by Parliament shall cease to have effect on the expiration of six months of the resolution. However, both Article 249(3) and Article 250(2) contain a savings clause as respects things done or omitted to be done before the expiration of the period. Such a saving has been rendered necessary because Parliament has, in pursuance of a resolution under Article 249, or under Article 250 during a proclamation of emergency, enacted a law on a matter in the State List (which Parliament is not otherwise competent to enact). Once the law ceases to have effect, the framers considered it necessary to introduce a saving as respects things done under it. This was necessary because a law lacking in legislative competence would be void, but for Articles 249,and 250.

63Copy pinpoint63. In S R Bommai v. Union of lndia 46 ; Justice B P Jeevan Reddy delivering a judgment on behalf of himself and Justice S C Agrawal observed that the requirement of laying a proclamation under Article G 356 before both Houses of Parliament and the provision for its cessation unless approved by a resolution passed by both Houses before the expiry of two months "is conceived both as a check upon the power and as a vindication of the principle of Parliamentary supremacy over the "(1994) 3 sec 1 H

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A executive". In the earlier decision in State of Rajasthan v. Union of India47 , a view was expressed that even after Parliament disapproves or declines to approve of a proclamation within two months, the proclamation would be valid for two months. Moreover, it was held that even if both the Houses do not approve or disapprove of the proclamation, the Government which has been dismissed or the assembly which may B have been dissolved do not revive. This view was disapproved in the judgment of Justice Jeeven Reddy in SR Bommai with the following observations : "290 ..... With utmost respect to the learned Judges, we find ourselves unable to agree with the said view insofar as it says c that even where both Houses of Parliament disapprove or do not approve the Proclamation, the Government which has been dismissed does not revive. (The State of Rajasthan [(1977) 3 SCC 592 : AIR 1977 SC 1361 : (1978) I SCR l] also holds that such disapproval or non-approval does not revive the Legislative D Assembly which may have been dissolved but we need not deal with this aspect since according to the view expressed by us hereinabove, no such dissolution is permissible before the approval of both the Houses). Clause (3), it may be emphasised, uses the words "approved by resolutions of both Houses of Parliament". The word "approval" means affirmation of the action by a higher or superior authority. In other words, the action of the President has to be approved by Parliament. The expression "approval" has an intrinsic meaning which cannot be ignored. Disapproval or non-approval means that the Houses of Parliament are saying that the President's action was not justified or warranted and that it shall no longer continue. In such a case, the Proclamation lapses, i.e., ceases to be in operation at the end of two months - the necessary consequence of which is the status quo ante revives. To say that notwithstanding the disapproval or non-approval, the status quo ante does not revive is to rob the concept of approval of its content and meaning. Such a view renders the check provided by clause (3) ineffective and of no significance whatsoever. The Executive would be telling Parliament: "I have dismissed the Government. Now, whether you approve or disapprove is of no consequence because the Government in no event can be revived. The deed is done. You better approve it H "< t977) 3 sec sn

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 237 [DR. D. Y. CHANDRACHUD, J.]

because you have practically no choice." We do not think that such a course is consistent with the principle of parliamentary supremacy and parliamentary control over the Executive, the basic premise of parliamentary supremacy. It would indeed mean supremacy of the Executive over Parliament. The dismissal of a Government under sub-clause (a) of clause (1) cannot also be equated to the physical death of a living being. There is no irrevocability about it. It is capable of being revived and it revives. Legislative Assembly which may have been kept in suspended animation also springs back to life. So far as the validity of the acts done, orders passed and laws, if any, made during the period of operation of the Proclamation is concerned, they would remain c unaffected inasmuch as the disapproval or non-approval does not render the Proclamation invalid with retrospective effect."(Id at p.226) Justice P B Sawant speaking on behalf of himself and Justice Kuldip Singh held that : D "There is no reason why the Council of Ministers and the Legislative Assembly should not stand restored as a consequence of the invalidation of the Proclamation, the same being the normal legal effect of the invalid action." (Id at p. 122) In this view, if a proclamation is held to be invalid then even though it is approved by both Houses of Parliament, the court would have the power to restore the status quo ante prior to the issuance of the proclamation and to restore the legislative assembly and the ministry. However, while doing so, it would be open to the court to suitably mould the relief and declare as valid, actions of the President till that date. Moreover, it would be open to Parliament and the state legislature to validate the actions of the President. This statement of law was concurred in by Justice S R Pandian. Justice K Ramaswamy, however, agreed with the view in State of Rajasthan, holding that there was no express provision in the Constitution to revive an assembly which has been dissolved or to re- induct a Government which has been removed. Justice A M Ahmadi G was generally in agreement with the view of Justice K Ramaswamy though he has not specifically expressed an opinion on this aspect. Justices J S Verma and Yogeshwar Dayal rested their decision upon the non- justiciability of the proclamation and relied on the decision in State of Rajasthan. H

238 SUPREME COURT REPORTS [2017] 5 S.C .R.

64Copy pinpoint64. The view which was adopted by this Court in State of Rajasthan was reflected in the majority decision of Justices Y V Chandrachud, Untwalia and Faz! Ali. That view posited that a proclamation has a life of two months and the only effect of its non- placement before Parliament is that it ceases after the expiry of two months. Hence, it was held that disapproval of the proclamation by B Parliament would not result in a revival of the status quo ante. This view in State of Rajasthan was overruled in S R Bommai. However, at this stage, it may also be of significant to note that in the course of the judgment Justice Chandrachud observed that there is a distinction between Articles 356 and 123. In the case of the ordinance making power of the c President under Article 123, it was observed that an ordinance could be disapproved by a resolution of Parliament and would cease to operate 0

even before the prescribed period. However, under Article 356, a proclamation had an assured life of two months. This was also noted in the judgment of Justice Bhagwati. Be that as it may, the significance of the nine Judge Bench decision in SR Bommai lies in its elucidation of the consequences of a disapproval or non-approval of a proclamation by Parliament. In such an event, it was held that disapproval or non-approval amounts to its negation by Parliament; a statement, that the action of the President was not justified or warranted and that it shall no longer continue. The necessary consequence is that the status quo ante would revive. The contrary view in State of Rajasthan, would deprive Parliament of its control and supremacy. The rationale of the decision of the majority on this aspect is that if the status quo ante was not to revive despite the disapproval or non-approval of a proclamation by Parliament, parliamentary supremacy would give way to the supremacy of the executive. F

65Copy pinpoint65. The Constitution has in its provisions used different phrases including "repeal'', "void", "cease to have effect" and "cease to operate". In Keshavan Madhava Menon v. State of Bombay48 , Justice Faz! Ali in the course of his dissenting opinion noticed the use of these phrases in the following observations: G "25. A reference to the Constitution will show that the framers thereof have used the word "repeal" wherever necessary (see Articles 252, 254, 357, 372 and 395). They have also used such words as "invalid" (see Articles 245, 255 and 276), "cease to H "(195l)SCR228

KRISHNA KUMAR sn.,;GH & ANR. v. STATE OF BIHAR 239 [DR. D. Y. CHANDRACHUD, J.]

have effect" (see Articles 358 and 372), "shall be inoperative", A etc. They have used the word "void" only in two articles, these being Article 13( 1) and Article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the B existing law, they have used apt language for the purpose; see for example Articles 249, 250,357, 358 and 369. The thoroughness and precision which the framers of the Constitution have observed in the matters to which reference has been made, disinclines me to read into Article 13(1) a saving provision of the kind which we . are asked to read into it." C 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 Article 213 uses the expression "void" in relation to an ordinance which makes a D 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 Article 213. Evidently, when the framers wished to indicate that a 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 E "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.

66Copy pinpoint66. An ordinance which has ceased to operate is not void. As an instrument, it is not still-born. During the tenure of the ordinance, it has the same force and effect as a law enacted by the legislature.

67Copy pinpoint67. Significantly, the expression "cease to operate" in Article 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 c~nnot hence mean two separate things in relation to the two situations. The issue which needs elaboration is whether an ordinance which by its very nature has a limited life can bring about consequences for the future (in terms of the creation of rights, privileges, liabilities and obligations) which H

240 SUPREME COURT REPORTS [2017] 5 S.C.R.

A will enure beyond the life of the ordinance. In deciding this issue, the court must adopt an interpretation which fmihers the basic constitutional premise oflegislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the rule oflaw and collective responsibility of the executive to the legislature. The silences of the Constitution must be B imbued with substantive content by infusing them with a meaning which enhances the rule oflaw. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent In a parliamentary democracy. The court's interpretation of the power to frame ordinances, c which originates in the executive arm of governrnent, cannot be oblivious to the basic notion that the primary form oflaw making power is through the legislature. Hence, the interpretation which the court places on the ordinance making power must be carefully structured to ensure that the power remains what the framers of our Constitution intended it to be: an exceptional power to meet a constitutional necessity. D

68Copy pinpoint68. We have already expressed our reasons for coming to the conclusion that the basic foundation upon which the decision of the Constitution Bench in Bhupendra Kumar Bose rested is erroneous. The Constitution Bench equated an ordinance with a temporary act enacted by the competent legislature. This approach, with respect, fails to notice the critical distinction between an enactment of a competent legislature and an ordinance. The constitutional power of promulgating ordinances is carefully conditioned by the requirements spelt out in Articles 123 and 213. The power is subject to limitations both of a durational and supervisory character. The intent of the framers of the Constitution, as reflected in the text of Article 123 and Article 213, is to subject to the ordinance making power to Parliamentary control. The enduring rights theory which was accepted in the judgment in Bhupendra Kumar Bose was extrapolated from the consequences emanating from the expiry of a temporary act. That theory 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 legislature may not have had an opportunity to even discuss or debate the ordinance (where, as in the present case, none of the ordinances was laid before the legislature); an ordinance

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 241 [DR. D. Y. CHANDRACHUD, J.]

may have been specifically disapproved or may have ceased to operate upon the expiry of the prescribed period. The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy. Any such assumption in regard to the conferment of power would run contrary to the principles which have been laid down in SR Bommai. The judgment in T Venkata Reddy essentially follows the same logic but goes on to hold that if Parliament intends to reverse matters which have been completed under an ordinance, it would have to enact a specific law with retrospective effect. This, in our view, reverses the constitutional ordering in the regard to the exercise oflegislative power.

69Copy pinpoint69. The issue which confronts itself before the court is whether c upon an ordinance ceasing to operate, either as a result of its disapproval by the legislature or upon its expiry after the prescribed period of six months of the assembling of the legislature, all consequences that have ensued would necessarily stand effaced and obliterated. The judgment of Justice Sujata Manohar in the referring order in the present case D adverted to the ambiguity inherent in the expression "permanent effect" and "rights of an enduring character". The Bench consisting of Justice Sujata Manohar and Justice DP Wadhwa, being a bench of two learned judges, was confronted with the binding effect of the decisions of the two Constitution Benches in Bhupendra Kumar Bose and TVenkata Reddy. Within the framework provided by the two binding precedents, E Justice Sujata Manohar held that the effect of an ordinance can be considered as permanent when it is irreversible or when it would be "highly impractical or against public interest to reverse it". A three-fold test has been laid down : the first is of the irreversibility of effect; the second, the impracticality of reversing a consequence which has ensued F under the ordinance and the third, is the test of public interest.· The principle which we will lay down is not constrained by the two Constitution Bench decisions which propounded the enduring rights theory, once we have held that the theory has been incorrectly lifted from the context of a temporary law and applied to the ordinance making power. G

70Copy pinpoint70. The judgment of Justice Sujata Manohar does indicate (as one commentatoron the subject states), that the learned judge "is willing to engage in some form of heightened scrutiny"49 • Yet, the three-fold test of irreversibility, impracticality or public interest may, if broadly 49 Shubhankar Dam (Supra) (Id at page 151) H

242 SUPREME COURT REPORTS [2017) 5 S.C.R.

A applied, cover almost every situation where an ordinance has ceased to operate. A demolition may have been effected. An order of conviction may have been passed upon ii trial. An acquisition of an industrial undertaking may be made. Large-scale regularisation of contractual or casual employees may be effected. Legalisation of unauthorised structures may be made. A myriad different situation can be B contemplated. Must every action under an ordinance produce binding rights, obligations and liabilities which will survive its demise? In our view, in determining the issue the over-arching consideration must be the element of public interest or constitutional necessity. Ultimately, it is this element of public interest which would have guided the court in c Bhupendra Kumar Bose in holding that the validation of an election by an ordinance should not be set at naught (though the logic adopted by the court was flawed). Bhupendra Kumar Bose also raises troubling aspects independently on its facts because in that case a Bill which was moved before the state legislature to incorporate provisions similar to those of the ordinance was defeated. Be that as it may, 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. Impracticality cannot by itself be raised to an independent status because it would then be simple enough for the executive to assert the supposed complexities in undoing the effects of an ordinance. Since the basic constitutional value which is at issue is of parliamentary supremacy and control, the moulding of relief can be justified in cases involving grave elements of public interest or constitutional necessity demonstrated by clear and cogent material. L Laying of ordinances before the legislature

71Copy pinpoint71. Article 213(2)(a) requires an ordinance to be laid before the state legislature. Asimilar requirement is contained in Article 123(2)(a). G Neither Article 123 nor Article 213 specifically provide for when an ordinance should be laid before the legislature upon its reassembling. The position in relation to Parliament is set out by Sub hash C Kashyap, in his work titled "Parliamentary Procedure- the law, privileges, practice and precedents 50." Rule 71 which the author extracts is as follows :

H 50 Universal Law Publishing Co. Pvt. Ltd (Id at page 16, 17)

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 243 [DR. D. Y. CHANDRACHUD, J.]

"Rule? I. Statement regarding Ordinances - ( 1) Whenever a Bill A seeking to replace an Ordinance with or without modification is introduced in the House, there shall be placed before the House along with the Bill a statement explaining the circumstances which had necessitated immediate legislation by Ordinance. (2) Whenever an Ordinance, which embodies wholly or partly or B with modification the provisions of a Bill pending before the House is promulgated a statement explaining the circumstances which had necessitated immediate legislation by Ordinance shall be laid on the Table at the commencement of the session following the promulgation of the Ordinance". (emphasis supplied) c The procedure of Parliament (see Kashyap supra) is that where on the first day of the session, the House is to adjourn after obituary references ordinances are laid on the table on the following day's sitting. Normally, ordinances promulgated by the President are laid on the table on the first sitting of the House after the promulgation. D

72Copy pinpoint72. The Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha51 contain a provision in Rule 140 which indicates that copies of the ordinance have to be made available to members of the legislative assembly "as soon as possible" after the Governor has promulgated an ordinance. Within a period of six weeks of the legislature reassembling (that being the period during which the ordinance will continue to operate) any member may move a resolution approving the ordinance with a notice of three days.

73Copy pinpoint73. The importance of tabling an ordinance before the legislature is thafit enables the legislature to act in furtherance of its constitutional power of supervision and control. The legislature is entitled to determine whether an ordinance should be disapproved. The need for and expediency of issuing an ordinance can be discussed and debated by the legislature. The Government which is accountable to and bears collective responsibility towards the legislature may bring a Bill along the lines of the ordinance (or with such modifications as are considered appropriate) G before the legislature in which event, the Bill can be debated upon and discussed before a vote is taken. The ordinance making power is not a parallel source oflegislation. Promulgated at a time when the legislature is not in session, the constitutional process involved postulates an " I 0th Edition Bihar Vidhan Sabha Patna H

244 SUPREME COURT REPORTS [2017] 5 S.C.R.

A intersection between the exercise of the ordinance making power with the constitutional authority of the legislature over an ordinance which has been promulgated by the President or the Governor.

74Copy pinpoint74. The failure to place an ordinance before the legislature constitutes a serious infraction of a constitutional obligation which the B executive has to discharge by placing the ordinance before the legislature. The laying of an ordinance facilitates the constitutional process by which the legislature is enabled to exercise its control. 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. In the case of delegated legislation, Parliamentary or state enactments may provide a c requirement oflaying 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. In Quarry Owners' Association v. State of Bihar52 this D Court held: "45 ..... Laying before the Houses of Parliament is done in three different ways. Laying of any rule may be subject to any negative resolution within a specified period or may be subject to its confirmation. This is spoken of as negative and positive resolution respectively. Third may be mere laying before the House. In the present case, we are not concerned with either the affirmative or negative procedure but consequence of mere laying before the legislature ..... 48 ..... Even if submission for the appellants is accepted that mere placement before a House is only for information, even then such information, inherently in it makes the legislature to play an important role as aforesaid for keeping a check on the activity of the State Government. Such placement cannot be construed to be non est. No act of Parliament should be construed to be of having no purpose. As we have said, mere discussion and questioning the Ministry concerned or authority in the House in respect of such laying would keep such authority on guard to act with circumspection which is a check on such authority, especially when such authority is even otherwise answerable to such legislature." (Id at p. 689)

H " (2000) s sec 655

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 245 [DR. D. Y. CHANDRACHUD, J.]

75Copy pinpoint75. The requirement of an ordinance being laid before the legislature cannot be equated with the laying of subordinate legislation. 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 ofa 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 c effect as a 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. The 'cease to operate' provision is hence founded on the fundamental requirement of an ordinance being placed before the legislature. If the executive has failed to comply with its unconditional obligation to place the ordinance before the legislature, the deeming fiction attributing to the ordinance the same force and effect as a law enacted by the legislature would not come into existence. An ordinance which has not been placed before the legislature at all cannot have the same force and effect as a law enacted and would be of no consequence whatsoever. The Constitution has not made a specific provision with regard to a situation where an ordinance is not placed before a legislature at all. Such an eventuality cannot be equated to a situation where an ordinance lapses after the prescribed period or is disapproved. The mandate that the ordinance will cease to operate applies to those two situations. Not placing an ordinance at all before the legislature is an abuse of constitutional process, a failure to comply with a constitutional obligation. A government which has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the ordinance which it has failed to place at all is valid till it ceases to operate. An G edifice of rights and obligations cannot be built in a constitutional order on acts which amount to a fraud on power. This will be destructive of the rule oflaw. Once an ordinance has been placed before the legislature, the constitutional fiction by which it has the same force and effect as a H

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A law enacted would come into being and relate back to the promulgation of the ordinance. In the absence of compliance with the mandatory constitutional requirement of laying before the legislature, the constitutional fiction would not come into existence. In the present case, none of the ordinances promulgated by the Governor of Bihar were placed before the state legislature. This constituted a fraud on the B constitutional power. Constitutionally, none of the ordinances had any force and effect. The noticeable pattern was to avoid the legislature and to obviate legislative control. This is a serious abuse of the constitutional process. It will not give rise to any legally binding consequences. M Re-promulgation in the present case c