|CITATION||Civil Appeal Nos. 5875 of 1994|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice T.S. Thakurm Justice Madan B. Lokur and Justice S.A. Bobde|
|DATE OF JUDGEMENT||02.01.2017|
The Hon’ble Supreme Court in the landmark judgment of Krishna Kumar Singh v. State of Bihar &Ors .dealt with the law-making the power of the executive by virtue of Article 123 and Article 213 of the Constitution of India. The majority judgment delivered by Justice D.Y. Chandrachud, in the ratio of 5:2, became a very good precedent for the future executions of democratic governance.
The facts of the case are as follows: A series of ordinances were passed by Government of Bihar namely “The Bihar Non- Government Sanskrit Schools (Taking over of Management and Control) Ordinance”, through which the State sought to take over some 429 Sanskrit schools, transferring the teachers and all employees of the school to state government. In the year 1989, the government issued the first ordinance, which was then followed by six successive ordinances. None of these ordinances, which were issued in exercise of the power of the Governor under Article 213 of the Constitution of India, were placed before the State Legislature. The State Legislature failed to enact a law in terms of the ordinances. Thus, the final ordinance lapsed in the year 1992.
Subsequently, writ proceedings were initiated before the Patna High Court by the staff of the Sanskrit schools for the payment of salaries. The High Court of Patna while dismissing the writ petition filed by the appellants seeking relief based on the said ordinances held that the repeated re-promulgation of the ordinances was unconstitutional in view of dicta of Hon’ble Supreme Court in D.C. Wadhwa and Ors. v. State of Bihar and Ors.
The Hon’ble Supreme Court was confronted with two issues in the instant case. Firstly, the validity of the Ordinances passed by the Bihar Government including careful scrutiny of the practice of Re-promulgation of Ordinances. Secondly, whether the petitioners were entitled to any legal right after the termination of the ordinance.
Summary of court decision and judgment
The present appeal filed to assail the view taken by the High Court was initially heard by a Division Bench of Hon’ble Supreme Court comprising of Sujata V. Manohar and D.P. Wadhwa JJ. Both the judges agreed in holding that all the Ordinances, commencing with the second, were invalid. However, they differed in their opinion to the extent the validity of the first ordinance was concerned. Justice Sujata Manohar held that the first Ordinance was also invalid being a part of the chain of Ordinances. Justice Wadhwa, however, held that the first Ordinance is valid and that its effect would endure until it is reversed by specific legislation.
When the case came up before a Bench of three judges it was referred to a Bench of five judges on the ground that it raised substantial questions relating to the Constitution. The proceedings before the Constitution Bench on 23 November 2004 ultimately resulted in a reference to a larger Bench of seven Judges. Justice D.Y. Chandrachud in his majority opinion after due application of mind to the controversy in issue came to the following conclusion.
- The power which has been conferred upon the President under Article 123 and the Governor under Article 213 was legislative in character. The Hon’ble bench observed that an Ordinance promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature provided (i) it must be laid before the legislature; and (ii) it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn. The Ld. Judge also cautioned that the Ordinance making power does not constitute the President or the Governor into a parallel source of lawmaking or an independent legislative authority. Upholding the principle of legislative supremacy, the Court held that the power to promulgate ordinances was subject to legislative control i.e. the President or, as the case may be, the Governor shall act on the aid and advice of the Council of Ministers.
- The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government because the legislature has to determine: (a) The need for, the validity of and expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments). The failure to comply with the same constitutes a serious constitutional infraction and abuse of the constitutional process.
- Most importantly the learned Bench emphasized on the fact that re-promulgation of ordinances amounts to a fraud on the Constitution and a subversion of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D.C. Wadhwa and Ors. v. State of Bihar and Ors
- Thereafter, the Court observed that the expression “cease to operate” in Articles 123 and 213 of the Constitution does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval is passed, the ordinance is rendered void ab initio.
- Answering the first question, the majority opinion of the court after factoring in the decision of 9 Judge Bench of Hon’ble Supreme in S. R. Bommai and Ors. v. Union of India and Anr held that every ordinary province is subject to judicial review.
- Addressing the second issue the Hon’ble bench did not give any heed to the theory of enduring rights as has been laid down in the judgment in State of Orissa v. Bhupendra Kumar Bose and followed in T Venkata Reddy and Ors v. Sate of Andhra Pradesh by the Constitution Bench. The Court ruled that since the ordinance is different from legislation, it does not automatically create rights and liabilities that go out of its term of operation. Thus there exists a vital difference between temporary legislation and ordinance. Justice Chandrachud mentions that when the question of what effects will survive after the ordinance is reviewed, the court must examine whether an undoing of such an act would run counter to the public interest. Thus a test of public interest was added by Justice Chandrachud in his analysis of maintenance of rights once the ordinance ceases to operate.
In light of the above conclusions, the Hon’ble Supreme Court held that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power. These ordinances which were never placed before the state legislature and were re-promulgated in violation of the binding judgment of this Court in DC Wadhwa were bereft of any legal effects and consequences. Hence the ordinances did not create any rights or confer the status of government employees. However, the Ld. Judges considered it necessary to mould the relief to the effect of declaring that no recoveries shall be made from any of the employees of the salaries, which had been paid during the tenure of the ordinances in pursuance of the directions contained in the judgment of the High Court.
At the outset Justice D.Y. Chandrachud in his majority opinion analyzed the historical evolution of the practice of issuing ordinances starting from the prerogative of the Monarch to legislate in the United Kingdom to the establishment of parliamentary supremacy towards the end of the seventeenth century, which limited the authority of the executive to issue ordinances. Thereafter the Court turned its focus to the Constituent Assembly debates. It took into consideration the arguments put forth by Mr. BN Rau, Professor K T Shah, Mr. B Pocker Sahib, H V Kamath, Pandit H N Kunzru and ultimately Dr. Ambedkar who was of the opinion “that the emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hypothesis, the legislature is not in session.” Dr. Ambedkar rejected the suggestion that an ordinance should automatically come to an end upon the expiry of thirty days from its promulgation. The objections expressed by H N Kunzru to the duration of an ordinance were not accepted on the ground that Parliament had to be convened at intervals not exceeding six months. Moreover, he also clarified that the President was to act on the aid and advice of the Council of Ministers. Draft Article 102 was accordingly approved.
The Hon’ble bench thereafter on a bare perusal of Article 213 of the constitution observed that ordinance making power is to be exercised in the extraordinary situations only. Article 213 of the Indian Constitution also provides that this ordinance will be treated equally to a statute of the parliament provided that it is laid down before both the houses. Practically, this ordinance making power is used as a tool by the government as an alternative to legislation. Many instances have been recorded wherein this ordinance making power was used in order to avoid arguments and deliberations and to avoid the shortcomings which are faced in the Rajya Sabha. This abuse was thus placed before the Hon’ble Supreme Court in Krishna Kumar case.
With regard to the constitutional validity of the ordinance making the power of the president, the 7 Judge Bench took cognizance of three important judgments namely A K Roy v. Union of India, T Venkata Reddy v. State of Andhra Pradesh, D C Wadhwa v/s. State of Bihar. In A.K.Roy v. The Union of India while examining the constitutional validity of the National Security ordinance, the court held that the ordinance making power is not beyond the scope of judicial review. Again in the case of T Venkata Reddy v. State of Andhra Pradesh, the court held that the ordinance enacted by the president is on par with the legislation passed by the state and the union legislature, and thus it cannot be questioned, while in the case of D.C. Wadhwa and Ors. v. State of Bihar and Ors, the court held that it can strike down the re-promulgated ordinance.
The 7-Judge Bench of Hon’ble Supreme while carefully analyzing the issue of the legislative power of the executive in light of Article 213 and Article 123 of the Constitution delivered a landmark judgment condemning Ordinance Raj so as to prevent re-promulgation of ordinances which amounts to subverting the legislative supremacy as contemplated by the Constitution of India.
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 Pankina v Secretary of State for the Home Department (2010) 3 WLR 1526.
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