NAME OF JUDGMENT: Krishna Kumar Singh & Anr. v. State of Bihar & Ors.
COURT NAME: Supreme Court of India
DATE OF JUDGMENT: January 2, 2017
CITATION: (2017) 3 SCC 1
BENCH NAME: Hon’ble J. D.Y. Chandrachud, J. Sharad Bobde, J. A.K. Goel, J. U.U. Lalit, J. Nageswara Rao, J. Madan B. Lokur, J. Tirath Singh Thakur
SUMMARY OF FACTS
The present case was decided by a seven-judge constitutional bench in the hon’ble Supreme Court of India on January 2, 2017. The cases revolved around re-promulgation of Ordinances and its constitutional validity.
In 1989, the Bihar Government passed the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance. According to this, 429 private Sanskrit Schools were taken over by the state of Bihar. As a result of this Ordinance, the services of teachers and other employees of the school were to be transferred to the state Government. The first Ordinance was followed by a succession of Ordinances, none of which were presented before the State Legislature and no law was passed with regard to this. As soon as a previous Ordinance ceased to operate, a fresh one was issued.
As a result of these Ordinances, the teachers and other employees of these schools claimed to be Government employees and thus filed petitions before the High Court of Patna, for the payment of salary and other emoluments. The question of law before the High Court was whether the seven successive re-promulgation of this Ordinance suffer from any illegality or constitutional impropriety. The High Court of Patna dismissed the Writ Petition relying on the decision in D.C. Wadhwa and Ors. v. State of Bihar and Ors.[1], stating that the repeated re-promulgation of the Ordinances was unconstitutional.
Thus, an appeal was filed before a two-judge bench of the Supreme Court in 1998. The bench, comprising of Justice Sujata Manohar and Justice D P Wadhwa, also held that re-promulgation of Ordinances was unconstitutional. However, they differed on the validity of the first Ordinance and hence the matter was referred to a 3-judge bench. In 1999, this bench (comprising of 3 judges) further referred it to a 5-judge bench, considering that the matter raised substantial questions related to the Constitution. On 23rd November 2004, the matter was referred to a larger Bench of seven judges.
On January 2, 2017, the seven-judge Constitution Bench of the Supreme Court of India held that promulgation of Ordinances is a fraud on the Constitution and leads to subversion of democratic legislative processes. The Court also held that the satisfaction of the President of India, under Article 123 and of the Governor under Article 213 while issuing an Ordinance is not immune from judicial review.
ISSUES RAISED
1. Whether Article 213 of the Constitution confers a mandatory obligation on the Executive to table an Ordinance before the Legislature?
2. Whether re-promulgation of an Ordinance is permissible as per the Constitution?
3. Whether an act through an Ordinance remains valid even after the Ordinance ceases to operate?
4. Whether the Ordinance making power was misused by the Parliament in the given case?
5. Whether the Ordinances passed by the Bihar Government were legally valid?
6. Whether the petitioners were entitled to any legal right after the termination of the Ordinance?
7. Whether the respondent could be prosecuted and punished under the Ordinance after it was repealed?
CONTENTIONS FROM BOTH THE SIDES
The main issue of contention between the parties in the given case was the Constitutional validity of the Ordinances promulgated and re-promulgated by the Executive.
· The appellants in the given case were seeking relief on the grounds of the said Ordinances. The appellants, brought to the notice of the Hon’ble Court, their right to claim salary and other emoluments from the Government of Bihar in light of the status of ‘government employees’ conferred on them by the said Ordinances.
· According to them, they were entitled to gain salary and other benefits from the government, from the day when the first Ordinance (Ordinance 32 of 1989) was promulgated and should continue to gain the same even after the last series of Ordinances expired due to lapse of time.
· The main issue raised by the respondents was whether the effect and consequences of actions concluded under an Ordinance prior to its ceasing to operate by virtue of it being disapproved by the Legislative Assembly, will hold value or will cease to exist.
· They raised the contention that if the Ordinances weren’t valid in nature, then they shall not be held liable to pay salaries to the teachers and other staff of the Sanskrit schools.
JUDGMENT OF THE CASE
The Supreme Court of India pronounced a very landmark and detailed judgment relating to the Constitutional validity of re-promulgation of Ordinances and discussed all important aspects related to the same. The Hon’ble Bench, in the ratio of 5:2 held that unfettered re-promulgation of Ordinances is unconstitutional.
The Indian Constitution, under Article 213 and Article 123, accredits the President/Governor to promulgate Ordinances; also known as authoritative orders, that enable the government to take immediate legislative action in the absence of legislative assembly. The Hon’ble Bench in this case declared that the powers conferred on the President and Governor under respective articles are not immune from judicial review. More importantly, it held that re-promulgation of Ordinances without placing these Ordinances before the legislature is a subversion of the democratic legislative process.
The majority judgement, authored by Justice D.Y. Chandrachud, on behalf of himself, and J. Bobde, J. Goel, J. Lalit and J. Nageswara Rao held that although the Constitution empowers the President/Governor to issue Ordinances, it is a conditional legislative power and can only be exercised when the Legislature is not in session.
Even though an Ordinance has the same force and effect as a law temporarily, it does not confer an independent legislative power upon the President/Governor. Further, a mandatory constitutional obligation was cast upon the government to lay the Ordinance before the Legislature by virtue of Article 213 itself.
This was done so that the legislature could decide on the following:
i. the need, validity, and expediency to issue the Ordinance;
ii. whether the Ordinance should be approved;
iii. whether a Statute must be enacted in furtherance of the Ordinance.
The Court also placed special emphasis on the decision given in DC Wadhwa v. State of Bihar where re-promulgation of Ordinances constituted a fraud on the Constitution. Re-promulgation is considered unconstitutional for two major reasons:
· Such an act attempts to circumvent the Legislature, which is the primary law-making authority;
· It defeats the purpose of Articles 123 and 213 which prescribe a limited power to issue Ordinances.
Another important observation was that any right, privilege, obligation or liability provided by the Ordinance will only survive if it fits with any of the three tests mentioned below:
a. the effect of the Ordinance should be irreversible in nature
b. reversing of the consequences of the Ordinance should be impractical
c. a compelling public interest must exist in order to continue the effect of the Ordinance
The judges, in this landmark judgment highlighted a very important issue; that the Ordinance-issuing power, under Articles 123 and 213, are not immune from judicial review. Hence, the court is empowered to adjudge the issue of existence of a valid exercise of the power. Apart from this, the Ordinance making power is also subject to legislative control, under the principle of legislative supremacy and the Executive are collectively answerable to the Legislature.
In the present case, Chief Justice (as he then was) T.S Thakur rendered a separate concurring opinion, stating that it is an open question whether Articles 123 and 213 make it obligatory for the Government to place the Ordinance before the Legislature.
The dissenting opinion of Justice Madan Lokur stated that Article 213 does not make it mandatory for an Ordinance to be laid before the Legislature. According to him, since an Ordinance acquires the force of law, its validity cannot depend on the contingency of whether or not it was tabled before the Legislature.
Thus, even though the judgment held that all the Ordinances constitute a fraud on the Constitution since they were not placed before the Legislature and were re-promulgated in violation the decision in the case of D.C. Wadhwa and did not confer the status of ‘Government employee’ on the teachers, the salary that had already been given by the Government need not be recovered from the teachers.
The Hon’ble Bench focused on each minute detail and provided clarification for the same in an elaborate manner. One of the key observations was that an Ordinance which is promulgated under Article 123 or Article 213 will only have equivalent force and effect as a law enacted by the legislature when; a) it is laid before the legislature and b) will cease to operate six weeks after the legislature has resembled or, even earlier if a resolution disapproving it is passed. Moreover, they stated that an Ordinance may also be withdrawn.
Another important issue addressed is that the Ordinance making power does not enable the President or the Governor, as a parallel source of law making or an independent Legislative Authority. Emphasis was also placed on the term ‘satisfaction of the President under Article 123 and of the Governor under Article 213’.
They also held that the Constitution has used different expressions such as “repeal” (Articles 252, 254, 357, 372 and 395); “void” (Articles 13, 245, 255 and 276); “cease to have effect” (Articles 358 and 372); and “cease to operate” (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression “cease to operate” in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the Ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an Ordinance shall be void.
The dissenting opinion of hon’ble Mr. Justice Madan B. Lokur can be summarised in the following manner:
· There is no mandatory requirement that an Ordinance should be laid before the Legislative Assembly.
· The fate of an Ordinance, whether it is laid before the Legislative Assembly or not, is entirely governed by the provisions of Article 213(2) (a) of the Constitution and by the Legislative Assembly.
· The limited control that the Executive has over the fate of an Ordinance after it is promulgated is that of its withdrawal by the Governor of the State under Article 213(2)(b) of the Constitution – the rest of the control is with the State Legislature which is the law-making body of the State.
The theory of enduring a right, as laid in the judgment in State of Orissa v. Bhupendra Kumar Bose and followed in T. Venkata Reddy and Ors. v. State of Andhra Pradesh by the Constitution Bench is based on the analogy of a temporary enactment. These judgments aren’t considered to be of use.
The majority Judgment, authored by Justice DY Chandrachud, held that the requirement of placing the Ordinance before the Legislature is mandatory; Justice Madan B Lokur observed that it is directory; Justice Thakur, the Chief Justice of India as he was then, in his separate concurring opinion, preferred to leave the ‘question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the Ordinance before the Parliament/legislature.
The Supreme Court has overruled two of its earlier judgments and has ruled the following in the given case:
a. The court will not enquire into the adequacy of material present before the President or Governor. It will investigate whether executive has committed any fraud or an abuse of power.
b. Ordinance is distinct from temporary legislation. Ordinance is not created by legislatures. Hence, it does not automatically create rights and liabilities which go beyond its term of operation.
MY COMMENTS ON THE CASE
Legislative debates and deliberations form the foundation of our democracy. Objections from opposition and deliberations, help in making laws based on critical reasoning. Creating laws purposefully when the houses are not in session through Ordinance route altogether debases the Constitution and its finest ideals.
However, considering the emergency situations, a right to promulgate Ordinances should be provided to the Executive with strict checks and controls in order to prevent misuse.
This judgment widens the scope of judicial review of Ordinances by promoting transparency in the functioning of the same. It enables the courts to exercise the powers of judicial review and verify the actions undertaken by both President and the Governor so as to arrive at the satisfaction on the necessity of the Ordinance.
Another important observation that I made is that re-promulgation is fundamentally at odds with the principal of parliamentary supremacy. It seems that the concept of re-promulgation of Ordinances and parliamentary supremacy cannot coexist in practical scenario. Also, Article 123 of the Constitution of India spells out requirements before resorting to the extraordinary measure of promulgating an Ordinance. It appears that the Government has converted the emergent power under Article 123 into a source of parallel law-making that is unethical to the scheme of the Constitution.
It has become a common practice that Ordinances are seldom brought before the legislature and are reissued again and again, violating the spirit of the Constitution. The court’s verdict seems to be a vital check on the power rampantly abused by the executive.
Thus, negligence and failure of Governments, at the Centre as well as states, are considered as fraud on the Constitution and thus fails to constitute a good spirit of law and order.
REFERENCES
1. SCC Online
3. Law Times Journal
4. Legitquest
