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[2017] 5 S.C.R. 160

KRISHNA KUMAR SINGH & ANR

v.

STATE OF BIHAR & ORS.

(Civil Appeal No. 5875of1994)

JANUARY 01, 2017

[T. S.THAKUR, CJI, MADAN B. LOKUR, S. A. BOBDE,

ADARSH KUMAR GOEL, UDAY UMESH LALIT,

DR. D. Y. CHANDRACHUD AND

L. NAGESWARA RAO, JJ.)

Constitution of India:

Art.2 I 3 -Promulgation

of Ordinances one after another in

succession but none

of them laid before the legislature -In the

instant case, Governor of Bihar promulgated an Ordinance

D providing for taking over of 429 Sanskrit schools in the

State -The

services of teachers and other employees of the school were to stand

transferred

to the state government subject to certain conditions -

The first Ordinance was followed by a succession of Ordinances -

None

of the Ordinances, which were issued in exercise of the power

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·of the Governor under Art.213 were placed before the state

legislature

as mandated

-Validi(v of the Ordinances - Held: Every

ordinance at issue constituted a fraud on constitutional power -

These ordinances which were never placed before the state

legislature and were re-promulgated in violation of the binding

judgment

of Supreme Court in D C Wadhwa were bereft of any legal

effect and consequences

-The ordinances did not create any rights

or confer the status

of government employees on the teachers and

other employees

of the schools - However, as regard the salaries

paid during

.the tenure of the ordinances pursuant to the directions

made

in the judgment of the High Court, no recoveries to be made

from any

of the employees -

Ordinance Raj-Bihar Non-Government

G Sanskrit Schools (Taking Over of Management and Control)

Ordinance, 1989 -Service

law.

(Per majority)

H

Art.213 -Promulgation of Ordinances during recess of

legislature -Requirement under -Held: The authority which is

conferred upon the Governor to promulgate Ordinances is

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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 161

conditioned by two requirements -The first is that an Ordinance A

can be promulgated only when the state legislature is not in session

-The second requirement is that the Governor. before issuing an

Ordinance has to be satisfied

of the existence of circumstances

rendering it necessary

to take immediate action - The Governor is

required to form a satisfaction of the existence of circumstances

'i3

which makes it necessary to take immediate action -Necessity is

distinguished from a mere desirability -

The expression

"necessity,.

coupled with "immediate action" conveys the sense that it is

imperative due

to an emergent situation to promulgate an Ordinance

during the period when the legislature

is not in session -Both these

requirements indicate a constitutional intent

to confine the power C

of the Governor to frame Ordinances within clearly mandated limits.

(Per majority)

Art.213(1) -Circumstances in which the Governor cannot

promulgate an Ordinance without the instructions

of the President

-The three situations where the instructions

of the President are D

required are: Where a Bill containing the same provisions requires

the previous sanction

of the President, for its introduction into the

legislature; where a Bill containing the same provisions would be

deemed necessary by the Governor for being reserved for

consideration of the President; and where a law enacted by the

state legislature containing the same provisions would require the

assent

of the President, failing which it would be invalid. (Per

majority)

Art.213 -Requirement

of laying an Ordinance before the state

legislature is

mandatory-The expression

"shall be laid" is a positive

mandate which brooks no exceptions -That the word 'shall' in

sub-clause

(a) of clause 2 of Art. 213 is mandatory, emerges from

reading the provision

in its entirety. (Per majority)

Art.213 -

Tenure of an Ordinance -Though the Constitution

contemplates that

an Ordinance shall have the same force and effect

qs a law enacted by the state legislature, this is subject to the

Ordinance being laid before the state legislature and coming

to an

end in the manner stipulated in sub-clauses

(a) and (b) -It is brought

to an end : By the Ordinance ceasing to operate upon the expiry of

a period of six weeks of the reassembly of the legislature; or if the

Ordinance

is disapproved by a resolution of the state legislature in

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

A which event it ceases to operate on the resolution disapproving it

being passed; or

in the event of the Ordinance being withdrawn by

the Governor.

(Per majority)

Art.163 -Governor acts on aid and advice

of Council of

Ministers -Governor while promulgating an Ordinance does not

B constitute an independent legislature, but acts on the aid and advice

of the Council of Ministers under Art.163-The Council of Ministers

is collectively responsible

to the elected legislative body to whom

the government

is accountable.

(Per majority)

c

Arts.123, 213 -Ordinance making power -Constitutional

control

of Parliament and the state legislatures over the Ordinance

making power

of the President (under Art.123) and the Governors

(under Art.213) is a necessary concomitant

to the supremacy of a

democratically

elected legislature -The reassembling of the

legislature defines the outer limit for the validity

of the Ordinance

promulgated during its absence

in session - Within that period, a

D legislature has authority to disapprove the Ordinance -The

requirement

of laying an Ordinance before the legislative body

subserves the constitutional purpose

of ensuring that the provisions

of the Ordinance are debated upon and discussed in the legislature

-The legislature has before it a full panoply

of legislative powers

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and as an incident of those powers, the express constitutional

authority

to disapprove an Ordinance -

If an Ordinance has to

continue beyond the tenure which is prescribed by Art.213(2)(a), a

law has

to be enacted by the legislature incorporating its provisions

-

Our Constitution does not provide that an Ordinance shall assume

the character

of a law enacted by the state legislature merely upon

the passing

of a resolution approving it.

(Per majority)

Arts.123, 213 -Significance

of placing tabling the Ordinance

-Held: The placement

of an Ordinance before the legislature is a

constitutional

necessizv; the under~ving object and rationale being

to enable the legislature to determine (i) the need for and expediency

of an ordinance; (ii) whether a law should be enacted: or (iii)

whether the Ordinance should

be disapproved.

(Per majority)

Art.213 -Failure

to lay an Ordinance before the legislature

-Impact

of -Held: The failure to lay an Ordinance before the state

legislature constitutes a serious infraction

of the constitutional

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 163

obligation imposed by Art.213(2) -Requirement of laying an A

Ordinance before the state legislature is a mandatory obligation

. and is not merely of a directory nature. (Per majority)

Art.213 -Failure

to lay an ordinance before the legislature

amounts

to an abuse of the constitutional process and is a serious

dereliction

of the constitutional obligation - Jn the case of delegated B

legislation, Parliamentary or state enactments may provide a

requirement

of laying subordinate legislation before the legislature

-It

is well-settled that a requirement of merely laying subordinate

legislation before the House

of the legislature is directory

_: But

where a disapproval

of subordinate legislation is contemplated, such

a requirement

is mandatory.

(Per majority)

Arts.123, 213 -Presidential/Governor satisfaction -Scope

of -Held: The constitutional power which has been conferred upon

the President under Art. 123 and upon the Governors under Art.213

to promulgate ordinances is conditional -Apart from the condition

that the power can

be exercised only when the legislature is not in

session, the power is subject to the satisfaction of the President

(under Art.123) or the Governor (under Art.213)

"'that circumstances

exist which render it necessary for him

to take immediate action.

"

(Per majority)

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Arts.123, 213 -Presidential/Governor satisfaction -Judicial E

review, scope - The satisfaction of the President under Art.123(1)

or

of the Governor under Art.213(1) is not immune from judicial

review -The power

of promulgating ordinances is not an absolute

entrustment but conditional upon a satisfaction that circumstances

exist rendering

it necessary to take immediate action -Since the F

duty to arrive at the satisfaction rests in the President and the

Governors (though it

is exercisable on the aid and advice of the

Council

of Ministers), the Court must act with circumspection when

the satisfaction under Art.123 or Art.213

is challenged - The court

will not enquire into the adequacy, or sufficiency

of the material

before the President or the Governor -

The court will not interfere G

if

tbere is some material which is relevant to his satisfaction - The

interference of the court can arise in a case involving a fraud on

power or an abuse

of power - This essentially involves a

situation

where the power has been exercised to secure an oblique purpose -

In exercising the power

of judicial review, the court must be mindful H

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

both of its inherent limitations as well as of the entrustment of the

power

to the head of the executive who acts on the aid and advice

of the

Council of Ministers owing collective responsibility to the

elected legislature -

In other words, it is

on(v where the court finds

that the exercise

of power is based on extraneous grounds and

amounts to

no satisfaction at all that the interference of the court

may be warranted

in a rare case -However, absolute immunity

from judicial review cannot

be supported as a matter of first principle

or

on the basis of constitutional history.

(Per majority)

Arts.I23, 213 -Re-promulgation of an Ordinance -

Constitutionality

of -Held: Re-promulgation of ordinances is

constitutionally impermissible since it represents an effort to

overreach the legislative body which

is a primary source of law

making authority

in a parliamentary democracy -Re-promulgation

defeats the constitutional scheme under which a limited power

to

frame ordinances has been conferred upon the President and the

Governors -

The danger of re-promulgation lies in the threat which

it poses

to the sovereignty of Parliament and the state legislatures

which have been constituted

as primary law givers under the

Constitution -

Open legislative debate and discussion provides

sunshine which separates secrecy

of ordinance making from

transparent and accountable governance through law making.(Per

majority)

Art.213(2)(a) and

(b) -Expression

"cease to operate" in

Art.2I 3(2)(a) -

When attracted - Held: Is attracted in two situations

-

The first is where a period of six weeks has expired since the

reassembling

of the legislature - The second situation is where a

resolution has been passed by the legislature disapproving

of an

ordinance -Apart from these two situations that are contemplated

by sub-clause

(a), sub-clause (b) contemplates that an ordinance

may be withdrawn at any time by the Governor -

Upon its withdrawal

the ordinance would cease

to operate as well.

(Per majority)

G Art.213 -Consequence of an ordinance terminating on the

expiry

of a period of six weeks or, within that period, on a

disapproval by the legislature -Held:

The constitutional provision

states

that,.in both situations the ordinance ceases to operate - Where

an ordinance has ceased to operate, would it result ipso Jure in a

H revival of the state of affairs which existed before the ordinance

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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 165

. ·'

was promulgated -There are two constructions which need to be A

analysed - At one end of the spectrum is the view that once the

legislature has expressed its disapproval by a resolution, the state

of affairs which the ordinance brought about stands dissolved and

that which existed on the eve

of the ordinance stands revived - Jn

this view, disapproval amounts to an obliteration of the effect of all B

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 (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

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have the force of law with the result that the enduring effects of an

ordinance

or consequences which have a permanent character may

subsist beyond the life

of 'the' ordinance -Alternatively, where a

situation has been altered irreversibly in pursuance

of the legal

authority created by the ordinance, the clock cannot

be set back to D

revive the state of affairs as it existed prior to the promulgation of

the ordinance. (Per majority)

Ordinance and temporary enactment -Distinction between -

ls Ordinance a temporary enactment -Held: A temporary Act is a

law which

is enacted by the legislature, Parliament or the state

legislature

in exercise of its plenary powers - While enacting a law.

the· legislature is entitled to define the period during which the law

is intended

to operate -The legislature decides whether the law

will

be for a limited duration or is to be permanent -

An ordinance

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is not in the nature of a temporary enactment -An ordinance is

conditioned by specific requirements - The authority to promulgate

an ordinance arises only when the legislature is not in session and

when

circumstances requiring emergent action exist -The

Constitution prescribes. that an ordinance shall remain valid

ior a

period

of not more than six weeks after the legislature reassembles

and even within that period, it will cease

to operate if it is disapproved

-Hence, the

considerations which govern law making by a G

competent legislature which has plenary powers to enact a law

cannot be equated with a temporary enactment.

(Per majority)

. Art.213 -Cease

to operate -Connotation of in the context 'of

Art.213 -Held: The Constitution has in its provisions used different

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A phrases including "repeal", "void", ··cease to have effect" and

"cease to operate" -These phrases have different connotations:

each cannot be equated with the other -Consequently, the court

should be careful to not attribute to the expression "cease to

operate" the same meaning as the expression "void" -This is of

B particular significance because clause 3 of Art.213 uses the

expression "void" in relation to an ordinance which makes a

provision which would not be valid

if enacted in an act of the

legislature

of the state assented to by the Governor

-Such a provision

contained in an ordinance is declared to be void by clause 3

of

Art.213

-Evidently, when the framers wished to indicate that a

C provision of an ordinance would be void in a certain eventuality,

the Constitution has expressly used that phrase -This would militate

against equating the expression "cease to operate" with the

expression "void" -Both have distinct connotations -Particularly,

where the same constitutional article has used both phrases -'cease

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to operate' (in clause 2) and 'void' in (clause 3) one cannot be read

to have the same meaning as the other. (Per majority)

Art.213 -Expression "cease to operate"-Connotation of -

Held: The expression "cease to operate" in Art.213(2)(a) applies

both

to an ordinance whose tenure expires after the prescribed

period as well as

in relation to an ordinance which is disapproved

E by the legislature

-The content of the expression cannot hence

mean two separate things

in relation to the two situations.

(Per

majority)

Power to frame ordinances -Enduring rights theory -

Applicability of -Held: The theory which was accepted in the

F judgment in Bhupendra Kumar Bose cannot be applied to the power

to frame ordinances -Acceptance of the doctrine of enduring rights

in the context

of an ordinance would lead to a situation where the

exercise

of power by the Governor would survive in terms of the

creation

of rights and privileges, obligations and liabilities on the

G hypothesis that these are of an enduring character

-The enduring

rights theory attributes a degree

of permanence to the power to

promulgate ordinances in derogation of parliamentary control and

supremacy

-.Doctrines/Principles. (Per majority)

Law making power -Ordinance and subordinate legislation

H -Requirement of an ordinance being laid before the legislature

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

cannot be equated with the laying of subordinate legislation -Held:

An ordinance

is made in the exercise of the legislative power of the

Governor which

is subordinate to and not a stream which runs

parallel to the power of law making which vests in the state

legislatures

and Parliament -Any breach of the constitutional

requirement

of laying an ordinance before the legislature has to be

looked upon with grave constitutional disfavour -

The Constitution

uses the express

"cease to operate" in the context of a culmination

of a duration of six weeks of the reassembling of the legislature or

as a result of a resolution of disapproval - The framers introduced

a mandatory requirement

of an ordinance being laid before the

legislature upon which it would have

the same force and effect as a

law enacted by the legislature, subject the condition that it would

cease to operate upon the expiry

of a period of six weeks of the

reassembling

of the legislature or earlier, if a resolution of

disapproval were to be passed.

(Per majority)

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Rights, privileges, obligations and liabilities arisen under an D

ordinance -Effect on, when ordinance ceased to operate -Held:

In determining the issue, the over arching consideration must be

the element

of public interest or constitutional necessity -In deciding

to mould the relief the effort of the court would be to determine

whether undoing what has been done under the ordinance would

manifestly be contrary to public interest -Impracticality

and E

irreversibility in that sense are aspects which are subsumed in the

considerations which weigh

in the balance while deciding where

public interest lies -

The appropriate test to be applied is the test of

public interest and constitutional

necessi(v -This would include

the issue as

to whether the consequences which have taken place F

under the Ordinance have assumed an irreversible character - In a

suitable case, it would be open

to the court to mould the relief

(Per

majority)

Scope

of the Ordinance making power -Historical evolution

-England, British India and Constituent Assembly -Discussed.

G

(Per majority)

Art.213(2) -It

is not mandatory under Art.213(2) to lay an

Ordinance before the Legislative Assembly

of the State Legislature,

nor would the failure

to do so result in the Ordinance not having

the force and effect

as an enacted law or being of no conseqlience H

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

A whatsoever - When an Ordinance is promulgated it is printed in the

Official Gazette

and therefore every legislator is aware of its

promulgation -Consequently, even

if the Executive does not lay

the Ordinance before the

State Legislature or if tlie Secretary of the

Legislative Assembly does not supply a printed copy of the

B Ordinance, a Member of the Legislative Assembly is not helpless -

His right

to move a Resolution for disapproving the

Ordinance

cannot be taken away by this subterji1ge -This right of a Member

of the Legislative Assembly cannot be made dependent on the

Executive laying the Ordinance before the State Legislature, nor

can this right be taken away by the Executive by simply not laying

C the Ordinance before the Legislative Assembly -Therefore, even

without making the laying

of an Ordinance before the

State

Legislature mandatory, the Constitution does provide adequate

checks and balances against a possible misuse

of power by the

Executive. (Dissenting view)

(Per Madan B.Lokur, J.)

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Art.213 -Re-promulgation of an Ordinance by the Governor.

of a

State is not per se a fraud on the Constitution - There could be

exigencies requiring

the re-promulgation of an Ordinance - However,

re-promulgation of an Ordinance ought not to be a mechanical

exercise and a responsibility rests

on the Governor to be satisfied

that "circumstances exist which render it necessary for him

to take

immediate

action" for promulgating or re-promulgating an

Ordinance. (Dissenting view) (Per Madan B.Lokur, J.)

Art.213 - In the absence of any challenge by the employees

to the first three Ordinances promulgated by the Governor of the

State of Bihar, their validity must be assumed -Consequently, even

though first three Ordinances may have

been repealed, the employees

would

be entitled to the benefits under them till they ceased to operate

and the benefits obtained by the employees under these three

Ordinances are justified -

However, first three Ordinances do not

confer any enduring or irreversible right or benefits on the

G employees -The promulgation of the fourth and subsequent

Ordinances were not adequately justified by the

State of Bihar in

spite of a specific challenge by the employees and therefore they

were rightly stntck down by the High Court. (Dissenting view) (Per

Madan B.Lokur, J.)

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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 169

Art.213(2}(a) -Approval of an Ordinance is not postulated A

by Art.213(2}(a) of the Constitution. (Dissenting view) (Per Madan

B.Lokur, J.)

Art.213 -Historical background relating to Ordinances -

Discussed -Government

of India, 1935 -ss.88,

90. (Per Madan

B.Lokur, J.)

B

Ordinance -The nature of power invoked for issuing

ordinances does not admit of creation of enduring rights in favour

of those affected by such ordinances -The ordinances issued in

the instant case could not have created any enduring rights

in favour

of Sanskrit school teachers particularly when the ordinances c

themselves were a fraud on the Constitution.

(Per T. S. Thakur, CJ/)

Art.213 -Repromulgation of ordinances, validity of -None

of them ever placed before the State legislature as required under

Art. 213

(2) -Held:

Since the process of issuing the ordinances

and repromulgation thereof was

in the nature of a single transaction D

and a part of a single series on the same subject the vice of invalidity.

attached to any such exercise

of power would not spare the first,

second

and the third ordinances which would like the subsequent

ordinances be unconstitutional on the

same principle -These

ordinances provided the foundation

for the edifice of the subsequent

repromulgations -

If the edifice

was affected, there is no way the E

foundation could remain unaffected by the vice of

unconstitutionality. (Per T. S. Thakur, CJ/)

General Clauses Act: s.6 -Repeal -Scope of -Held: s.6 in

. its terms applies only to a repeal - An ordinance ceases to have

effect six weeks from the date on which the legislature reassembles

F

(or upon the passing of a legislative resolution disapproving it) -

An ordinance which lapses upon the expiry of its tenure of six weeks

from the reassembly

of the legislature is not repealed as such -

Repeal

of a legislation results from a positive or affirmative act of

the legislative body based on its determination that the law is no G

longer required - Repeal takes place through legislation - An

ordinance lapses ('ceases to operate') when it has failed to obtain

legislative approval by being converted into a duly enacted

legislation - s. 6 of the General

Clauses Act protects rights, privileges

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A and obligations and continues liabilities in cases of repeal of an

enactment -The issue as to whether rights, privileges, obligations

and liabilities which have arisen under

an ordinance which has

ceased

to operate would endure is not answered by s.6 of the General

Clauses Act.

(Per majority)

B Words and phrases:

Expression ''repeal", "void", 'cease to have effect", "cease

to operate" -Distinction between. (Per majoriM

Expression "cease to operate" -Meaning of (Per majority)

C Expression "disapproval"-Meaning of (Per majority)

Answering the reference, the Court

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HELD: Per Dr. D. Y. Chandrachud. J.: (for himself,

S. A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit and

L. Nageswara Rao, JJ.)

The power which has been conferred upon the President

under Article 123 and the Governor under Article 213 is

legislative in character. The power

is conditional in nature: it can

be exercised only when

the legislature is not in session and

subject to the satisfaction of the

President or, as the case may

be,

of the Governor that circumstances exist which render it

necessary to take immediate action. An

Ordinance which is

promulgated under Article

123 or Article 213 has the same force

and effect as a law enacted by the legislature but it must (i) be

laid before the legislature;

and (ii) it will cease to operate six

weeks after the legislature has reassembled or, even earlier

if a

resolution disapproving

it is passed. Moreover, an

Ordinance

may also be withdrawn. The constitutional fiction, attributing to

an Ordinance the same force and effect as a law enacted by the

legislature comes into being

if the

Ordinance has been validly

promulgated

and complies with the requirements of Articles 123

G and 213. The

Ordinance making power does not constitute the

President or the Governor into a parallel source of law making

or an independent legislative authority; Consistent with the

principle of legislative supremacy, the power to promulgate

ordinances is subject to legislative control. The President or, as

the case may be, the Governor acts on the aid

and advice of the

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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 171

Council of Ministers which owes collective responsibility to the A

legislature. The requirement of laying an Ordinance before

Parliament or the state legislature is a mandatory constitutional

obligation cast upon

the government. Laying of the ordinance

before the legislature is mandatory because the legislature has

to

determine: (a) The need for, validity of and expediency to

promulgate

an ordinance; (b) Whether the

Ordinance ought to

be approved

or disapproved; (c) Whether an Act incorporating

the provisions

of the ordinance should be enacted (with or without

amendments).

The failure to comply with the requirement of

laying an ordinance before the legislature is a serious

constitutional infraction and abuse of the constitutional process.

Re-promulgation

of ordinances is a fraud on the Constitution and

a sub-version of democratic legislative processes, as laid down

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in the judgment of the Constitution Bench in D

C Wadhwa. Article

213(2)(a) provides

that an ordinance promulgated under that

article shall

"cease to operate" six weeks after the reassembling D

of the legislature or even earlier, if a resolution disapproving it is

passed in the legislature.

The Constitution has used different

expressions such as

"repeal" (Articles 252, 254, 357, 372 and

395); "void" (Articles 13, 245, 255 and 276); "cease to have

effect" (Articles 358 and 372); and "cease to operate" (Articles

123, 213

and 352). Each of these expressions has a distinct

connotation. The expression

"cease to operate" in Articles 123

and 213 does not mean that upon the expiry of a period of six

weeks

of the reassembling of the legislature or upon a resolution

E

of disapproval being passed, the ordinance is rendered void ab

initio. Both Articles 123 and 213 contain a distinct provision

setting out the circumstances in which an ordinance shall be void.

An ordinance is void in a situation where

it makes a provision

which Parliament would not be competent to enact (Article 123(3))

or which makes a provision which would not be a valid if enacted

in an act

of the legislature of the state assented to by the Governor

(Article 213(3)). The framers having used the expressions

"cease

to operate" and "void" separately in the same provision, they

cannot convey the same meaning; The theory

of enduring rights

which has been laid down in the judgment in Bhupendra

Kumar

Bose and followed in T Venkata Reddy by the Constitution Bench

is based on

the analogy of a temporary enactment. There is a

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

basic difference between an ordinance and a temporary enactment.

These decisions

of the Constitution Bench which have accepted

the notion

of enduring rights which will survive an ordinance which

has ceased to operate do not lay down the correct position. The

judgments are also no longer good law in view of the decision in

S R Bommai; No express provision has been made in Article

123

and Article 213 for saving of rights, privileges, obligations

and liabilities which have arisen under an ordinance which has

ceased to operate. Such provisions are however specifically

contained in other articles of the Constitution such as Articles

249(3),

250(2), 357(2), 358 and 359(1A). This is, however, not

C . conclusive and the issue is essentially one of construction; of

giving content to the 'force and effect' clause while prescribing

legislative supremacy

and the rule of law; The question as to

whether rights, privileges, obligations and liabilities would survive

an

Ordinance which has ceased to operate must be determined

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as a matter of construction. The appropriate test to be applied is

the test of public interest and constitutional necessity. This would

include the issue as to whether the consequences which have

taken place under the

Ordinance have assumed an irreversible

character. In a suitable case, it would be open to the court to

mould the relief;

and The satisfaction of the

President under

Article 123 and of the Governor under Article 213 is not immune

from judicial review particularly after the amendment brought

about by the forty-fourth amendment to the Constitution by the

deletion

of clause 4 in both the articles. The test is whether the

satisfaction is based on some relevant material. The

court in the

exercise

of its power of judicial review

will not determine the

sufficiency

or adequacy of the material. The court will scrutinise

whether the satisfaction in a particular case constitutes a fraud

on power or was actuated by an oblique motive. Judicial review

in other words would enquire into whether there was no

satisfaction

at all. Every one of the ordinances at issue constituted

a

fraud on constitutional power. These ordinances which were

never placed before the state legislature and were re-promulgated

in violation

of the binding judgment of this Court in DC Wadhwa

are bereft of any legal effects and consequences. The ordinances

do not create any rights or confer the status of government

employees. However, no recoveries shall be made from any of

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 173

the employees of the salaries which have been paid during the A

tenure of the ordinances in pursuance of the directions contained

in the

judgment of the High Court.

[Paras 80, 81] [248-B-H;

249-A-H; 250-A-G]

DC Wadhwa v. State of Bihar (1987) 1 SCC 378:(1987)

1 SCR 798; SR Bommai v. Union of India (1994) 3

SCC 1: [1994] 2 SCR 644; Quarry Owners' Association

v. State of Bihar (2000) 8 SCC 655:(2000] 2 Suppl.

SCR 211 -relied on.

T Venkata Reddy v. State of Andhra Pradesh (1985) 3

SCC 198 : [1985] 3 SCR 509; State of Orissa v.

Bhupendra Kumar Bose (1962] Suppl. (2) SCR 380 -

disapproved.

Krishna Kumar Singh v. State of Bihar (1998) 5 SCC

643 : (1998] 3 SCR 206; R.K. Garg v. Union of India

(1981) 4 sec 675: [1982] 1 SCR 947; A. K Roy v.

Union of India (1982) 1 SCC 271: [1982] 2 SCR 272;

R C Cooper v. Union of India (1970) 1. SCC 248: [1970)

3 SCR 530; A K Roy v. Union of India (1982) 1 SCC

271 : [1982] 2 SCR 272; Madhav Rao v. Union of India

[1971] 3 SCR 9; State of Rajasthan v. Union of India

[1978] 1 SCR 1; Indra Sawhney v. Union of India

(1992) Supp. (3) SCC 217: [1992) 2 Suppl. SCR 454;

Mahanat Narayan Dessjivaru v. State of Andhra AIR

(1959) AP 471; State of Punjab v. Mohar Singh AIR

(1955) SC 84: [1955] SCR 893; State of Rajasthan v.

Union of India (1977) 3 SCC 592:(1978] 1 SCR 1;

Keshavan Madhava Menon v. State of Bombay [1951)

SCR 228 -referred to.

The Case of Proclamations (1611) 12 Co Rep 74;

Pankina v. Secretmy of State for the Home Department

[2010] 3 WLR 1526; Wicks v. Director of Public

Prosecutions

(1947) A.C. 362; Warren v. Windle

(1803)

3 East 205, 211-212 : 102 E.R. (K.B.) 578; Steavenson

v. Oliver 151 E.R. 1024, 1026-1027 -referred to.

P Ramanatha Aiyar, the Major Law Lexicon (IV Edn.

Pg 1053; Justice C K Thakker's Encyclopaedic Law

B

c

D

E

F

G

H

174 SUPREME COURT REPORTS (2017) 5 S.C.R.

A Lexicon Ashoka Law House Pg.879; Black's Law

Dictionary Xth Edn. Pg.268; Parliamentary Procedure

-the law, privileges

and precedents by Subhash C

Kashyap -referred to.

B

c

Per Madan B.Lokur, J. (Partly dissenting)

I. It is not mandatory under Article 213(2) of the

Constitution to lay an Ordinance before the Legislative Assembly

of the State Legislature, nor would the failure to do so result in

the Ordinance not having the force and effect as an enacted law

or being of no consequence whatsoever. Further, an Ordinance

cannot create an enduring or irreversible right in a citizen. [Paras

1, 2) [251-C-D]

State of Orissa v. Bhupendra Kumar Bose (1962) Suppl.

(2)

SCR

380; T Venkata Reddy v. State of Andhra

Pradesh (1985) 3 SCC 198: (1985) 3 SCR 509 -

D

overruled.

2. As far as the re-promulgation of an

Ordinance is

concerned, the re-promulgation

of an

Ordinance by the Governor

of a State is not per sea fraud on the Constitution. There could be

exigencies

requiring the re-promulgation of an

Ordinance.

E However, re-promulgation of an Ordinance ought not to be a

mechanical exercise

and a responsibility rests on the Governor

to be satisfied that

"circumstances exist which render it

necessary for him to take immediate action" for promulgating or

re-promulgating an Ordinance. [Para 3) (251-E, F)

F

G

H

3. Finally, in the absence of any challenge by the employees

to the first

three

Ordinances promulgated by the Governor of

the State of Bihar, their validity must be assumed. Consequently,

even

though these three

Ordinances may have been repealed,

the employees would be entitled to the benefits under them till

they ceased to operate and the benefits obtained by the employees

under these three Ordinances arc justified. However, these three

Ordinances do not confer any enduring or irreversible right or

benefits on the employees. The promulgation of the fourth and

subsequent Ordinances has not been adequately justified by the

State

of Bihar in spite of a specific challenge by the employees

and therefore they were rightly struck down by the High Court.

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 175

(Para 4) [252-A, BJ A

4. Promulgation of an Ordinance: Article 213 of the

Constitution provides that when the Governor of the State is

satisfied

that

"circumstances exist which render it necessary for

him to take immediate action, he may promulgate such

Ordinances as the circumstances appear to him to require." B

However, this

is subject to the exception that the Governor cannot

promulgate an Ordinance when both Houses

of the Legislature

are in session. An Ordinance

is promulgated by the Governor of

a State on the aid and advice of his Council

of Ministers and is in

exercise of his legislative power. Article

213 of the Constitution

does not require the Legislature to approve an Ordinance -Article

213(2) of the Constitution refers only to a Resolution disapproving

an Ordinance.

If an Ordinance is disapproved by a Resolution of

the State Legislature, it ceases to operate

as provided in Article

213(2)(a) of the Constitution.

If an Ordinance is not disapproved,

c

it docs not lead to any conclusion that it has been approved -it D

only means

that the Ordinance has not been disapproved by the

State Legislature, nothing more

and nothing less. The concept

of disapproval of an Ordinance by a Resolution as mentioned in

Article 213(2)(a)

of the Constitution may be contrasted with

Article 352(4)

of the Constitution where a positive act of approval

of a

Proclamation issued under Article 352(1) of the Constitution

is necessary. Similarly, a positive act of approval of a Proclamation

issued under Article 356(1) of the Constitution is necessary under

Article 356(3) of the Constitution. A Proclamation issued under

Article 360 of the Constitution also requires approval under

Article 360(2) of the Constitution. There is therefore a conscious

distinction made in the Constitution between disapproval of an

Ordinance and approval of a Proclamation and this distinction

cannot be glossed over.

It is for this reason that only disapproval

E

F

of an Ordinance is postulated by Article 213(2)(a) of the

Constitution and approval of an Ordinance is not postulated by

Article 213(2)(a) of the Constitution. The expression of G

disapproval

of an

Ordinance could be at the instance of any one

Member of the Legislative Assembly in view of Ruic 140 of the

Rules

of

Procedure and Conduct of Business in the Bihar Vidhan

Sabha.

If the State Legislature disapproves an Ordinance by a

H

176 SUPREME COURT REPORTS . (2017] 5 S.C.R.

A Resolution, it ceases to operate. [Paras 8-111 [253-C, F-H; 254-

A-C]

B

c

D

E

F

G

H

5. After the promulgation of an Ordinance

5.1.

After the promulgation of an Ordinance by the

Governor of a

State at the instance of the Executive, the

Constitution visualizes three possible scenarios. Firstly, despite

t«e seemingly mandatory language of Article 213(2)(a) of the

Constitution, the Executive may not lay an Ordinance before the

Legislative Assembly of the State Legislature. Secondly, the

Executive may, in view of the provisions of Article 213(2)(b) of

the Constitution advise the Governor of the State to withdraw an

Ordinance at any time, that is, before reassembly of the State

Legislature

or even after reassembly. Thirdly, the Executive may,

in accordance with Article 213(2)(a) of the Constitution lay an

Ordinance before the Legislative Assembly of the State

Legislature. [para 12) [254-D-G; 255-A]

5.1.1.

First scenario: Article 213(2)(a) of the Constitution

provides

that an Ordinance ceases to operate at the expiration

of six weeks of reassembly of the State Legislature or if before

the expiration of that period a Resolution disapproving it is passed

by the State Legislature. An Ordinance ceasing to operate

at the

expiration

of six weeks of reassembly of the State Legislature is

not related

or referable to laying the Ordinance before the State

Legislature. Therefore, whether an Ordinance is laid before the

State Legislature or not, the provisions of Article 213(2)(a) of

the Constitution kick in and the Ordinance will cease to operate

at the expiration of six weeks of reassembly of the State

Legislature.

On a textual interpretation of Article 213(2)(a) of

the Constitution, not laying an Ordinance before the Legislative

Assembly has only one consequence, which is

that the Ordinance

will cease to operate

at the expiration of six weeks of reassembly

of the State Legislature. [para 14] [255-B-F]

5.1.2. If an Ordinance is not laid before the State

Legislature it docs not become invalid or void. An Ordinance,

on its promulgation either has the force

and effect of a law or it

does not

-there is no half-way house dependent upon what steps

the Executive might or might not take under Article 213(2) of

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 177

the Constitution. Article 213(2) of the Constitution is, in a sense, A

disjunctive-the first part declaring that an Ordinance promulgated

under this Article shall have the same force and effect as an Act

of the Legislature

of the

State assented to by the Governor and

the second part requiring laying the Ordinance before the

Legislative Assembly. It is not possible to read the first part as B

being conditional

or dependent on the performance of the second

part, that is to say that if the Ordinance is not so laid, it will not

have

the force and effect of a law. There is nothing in Article

213(2)

of the Constitution to suggest this construction. [Paras

15, 16) (255-G; 256-A-D]

5.1.3. Article 213(3)

of the Constitution provides for the

only contingency when an Ordinance is void. This provision does

not suggest

that an Ordinance would be void if it is not placed

before

the

State Legislature. The framers of our Constitution

were quite conscious of and recognized the distinction between

c

an Ordinance that is void (under Article 213(3) of the D

Constitution)

and an Ordinance that ceases to operate (under

Article 213(2) of the Constitution). If an Ordinance is void, then

any action taken

under a void Ordinance would also be void. But

if an Ordinance ceases to operate, any action taken under the

Ordinance would be valid during the currency of the

Ordinance

since it has the force and effect of a law. Clearly, therefore, the

distinction between Clause (2) and Clause (3) of Article 213 of

the Constitution is real and recognizable as also the distinction

between an Ordinance that is void and an Ordinance that ceases

to operate. On a reading of Article 213(2) of the Constitution,

therefore,

it is not mandatory that an

Ordinance should be laid

before the Legislative Assembly of the State Legislature. (paras

17, 18,

19) (256-F-H; 257-A, BJ

5.1.4. What can a Member of the Legislative Assembly

do

if an Ordinance is not laid before the

State Legislature -is he

without recourse? When an Ordinance is promulgated it is

printed in the Official Gazette and therefore every legislator is

aware of its promulgation. As far as the State Legislature of Bihar

is concerned, under Rule 140 of the Rules of Procedure and

Conduct of Business in the Bihar Vidhan Sabha a printed copy of

the Ordinance is also required to be made available to all Members

E

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

A of the Legislative Assembly by its Secretary. Therefore, on

reassembly

of the Legislative Assembly, any Member may move

a resolution for disapproving the

Ordinance either on the basis

of the Official Gazette or on the basis of a printed copy of the

Ordinance made available by the Secretary of the Legislative

B

c

Assembly. Consequently, even if the Executive does not lay the

Ordinance before the State Legislature or if the Secretary of the

Legislative

Assembly does not supply a printed copy of the Ordinance, a Member of the Legislative Assembly is not helpless.

Surely, his right to move a Resolution for disapproving the

Ordinance cannot be taken away by this subterfuge. This right

of a Member of the Legislative Assembly cannot be made

dependent on the Executive laying the Ordinance before the State

Legislature,

nor can this right be taken away by the Executive by

simply not laying the

Ordinance before the Legislative Assembly.

Therefore, even without making the laying

of an

Ordinance before

D the State Legislature mandatory, the Constitution does provide

adequate checks and balances against a possible misuse

of power

E

F

by the Executive.

[Paras 20, 21) [257-D-H)

5.2. Second

scenario As far as the second scenario is

concerned, the Executive is entitled to, in view

of the provisions

of Article 213(2)(b) of the Constitution advise the Governor of

the State to withdraw an

Ordinance at any time, that is, before

reassembly

of the State Legislature or after its reassembly but

before it is laid before the Legislative Assembly. In either situation

(particularly in the

latter situation) it could not be said that laying

the

Ordinance before the Legislative Assembly would still be

mandatory.

In such situations, no purpose would be served by

laying a withdrawn

Ordinance before the State Legislature except

perhaps completing an empty formality. Our Constitution has not

been framed for the sake

of completing empty formalities. This

is

an additional reason for holding that there is no mandatory

requirement that regardless of the circumstances, an

Ordinance

G shall mandatorily be placed before the State Legislature. [Para

22) [258-A-C]

5.3.

Third scenario The third scenario is where the

Executive, in accordance with Article 213(2){a) of the Constitution

lays an

Ordinance before the Legislative Assembly. The

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 179

Ordinance could be 'ignored' and as a result no one may move a A

Resolution for its disapproval. In that event, the Ordinance would

run its

natural course and cease to operate at the expiration of

six weeks

of reassembly of the State Legislature. However, if a

Resolution

is moved for disapproval of the

Ordinance, the State

Legislature may reject the Resolution and in that event too, the B

Ordinance would run its natural course and cease to operate at

the expiration of six weeks of reassembly of the State Legislature.

But

if a Resolution for disapproval of an

Ordinance is accepted

and the Ordinance disapproved then it would cease to operate

by virtue

of the provisions of Article 213(2)(a) of the Constitution

on

the Resolution being passed by the Legislative Assembly and C

the Legislative Council agreeing with it. [Paras 24-26] [258-E­

H]

6. When a Bill is introduced in the Legislative Assembly, it

becomes

the property of the Legislative Assembly and even

assuming an

Ordinance is laid before the State Legislature and is D

disapproved by a Resolution, the disapproval has

no impact on

the Bill. Conversely,

if the introduction of a Bill is declined by

the Legislative Assembly

or a Bill introduced in the Legislative

Assembly is

de.feated, it will have no impact on an Ordinance laid

before the Legislative Assembly which will continue to operate

till it

is disapproved or it ceases to operate at the expiration of E

six weeks

of reassembly of the Legislative Assembly. Whether

to pass or not pass or enact or not enact a Bill into a law is entirely

for the Legfslative Assembly to decide regardless

of the fate of

the

Ordinance, as is obvious or is even otherwise evident from

Blmpendra Kumar Bose. Similarly, disapproval of an Ordinance F

is

entirely for the Legislative Assembly and the Legislative

Council to decide regardless of the fate

of any Bill introduced or

sought to be introduced. [Para 29] (259-E-G]

7. Effect of concluded transactions under an

Ordinance

When an Ordinance is sought to be replaced by a Bill G

introduced in the State Legislature, it is entirely for the State

Legislature to decide whether actions taken under the Ordinance

are saved or are not saved or actions taken but not concluded

will continue

or will not continue. Being constitutionally transient,

an

Ordinance cannot, unlike a temporary Act, provide for any H

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

A savings clause or contingency. Even if an Ordinance hypothetically

could

provide for such a savings clause, the State Legislature

may not accept it, since a Bill introduced by the government of

the day is the property of the State Legislature and it is entirely

for the State Legislature to decide the contents of the Act. When

B

c

an

Ordinance ceases to operate, there is no doubt that all actions

in

the pipeline on the date it ceases to operate will terminate.

This is simply because when the

Ordinance ceases to operate, it

also ceases to have the same force

and effect as an Act assented

to by the

Governor of the State and therefore pipeline actions

cannot continue without any basis in law. All actions intended to

be commenced on the basis of the

Ordinance cannot commence

after the Ordinance has ceased to operate. As far as an Act enacted

by a State Legislature is concerned, there is no difficulty in

appreciating the consequence of its repeal. Section 6 of the

General Clauses Act, 1897 is quite explicit on the effect of the

D repeal

of an Act passed by a Legislature. In so far as a temporary

Act is concerned, actions taken during its life but not concluded

before it terminates (pipeline transactions) will not continue

thereafter since those actions and transactions would not be

supported by any existing law. However, to tide over any difficulty

E

F

G

that might be caused in such an eventuality, a temporary Act could

provide

for the continuance of such actions and transactions. The

reason for this is that a temporary Act is enacted by the Legislature

and it certainly has the power to cater to such eventualities.

Therefore,

if there is a permissive provision to the contrary, a

pipeline transaction could survive the life

of a temporary Act. It

must be remembered that an

Ordinance has "the same force and

effect as an Act of the Legislature of the State assented to by the

Governor" (Art. 213(2) of the Constitution) but is not an Act of

the Legislature -it is not even a temporary Act of the Legislature.

(Paras 31, 32, 35, 41) (260-C-H; 261-A-C; 263-G, HJ

Warren v. Windle (1803) 3 East 205; 102 E.R. (KB)

578; Steavenson v. Oliver 151 E.R. 1024; Wicks v.

Director of Public Prosecutions [1947) AC 362 -

referred to.

8. Historical background Section 88

of the Government of

India Act, 1935 gave power to the Governor of a

Province to

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 181

promulgate an Ordinance during the recess of the Legislature, if A

he is satisfied

that circumstances exist which render it necessary

to

take immediate action. Section

90 of the Act, 1935 gave an

extraordinary power to the Governor to enact a Governor's Act

containing such provisions as he considers necessary. Sub­

section (3) of Section 90 of the Act, 1935 provides that a

Governor's Act shall have the same force

and effect as an Act of B

the Provincial Legislature assented to by the Governor. The

significance of having two separate provisions, Section 88 and

Section

90 is that this Act also accepted a distinction between an

Ordinance (having a limited life) and an Act (having a

'permanent'

life until repeal). An Ordinance would have a limited shelf life in

terms

of Section 88 of the Act, 1935 and it would cease to have

any force

and effect as an Act of the Provincial Legislature assented

to by the Governor after the expiry

of its shelf life. If the effect of

an Ordinance promulgated by the Governor were to survive after

the expiry

of its shelf life for an indefinite period, there would

have been no occasion for enacting Section

90 of the Act, 1935

empowering the Governor to enact a

Governor's Act, since an

appropriately

drafted savings clause in an Ordinance would serve

the same purpose. Appreciating this distinction, the Constituent

Assembly did away with the extraordinary power

of enacting an

Act conferred on the Governor under Section

90 of the Act, 1935.

However,

it retained the impermanence of an Ordinance as is

clear from a reading of Article 213 of the Constitution. The

retention of impermanence is also clear from a reading of Article

213 of the Constitution in juxtaposition with some other provisions

of the Constitution. For example, Article 357(2) of the Constitution

(as originally framed) provided that Parliament

or the President

or any other authority may exercise the power of a State

Legislature in making a law during a Proclamation of an

emergency issued under Article 356 of the Constitution.

However, that law shall cease to have effect on the expiration of

one year after the Proclamation has ceased to operate

"except

as respects things done or omitted to be done before the

expiration of the said period ...... " By the Constitution (Forty­

second Amendment) Act, 1976 the period

of one year was deleted

and such law shall continue in force until altered or repealed or

amended by a competent Legislature or other authority even after

c

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

A the Proclamation issued under Article 356 of the Constitution

has ceased to operate. [Paras 51-54] [267-E-H; 268-A-E)

B

c

D

E

F

G

9. Similar provisions excepting things done or omitted to

be done (for a limited period of six months) are found in Article

249

and Article

250 of the Constitution notwithstanding that a

Resolution

passed under Article 249 of the Constitution has

ceased to be in force (in the case of Article 249 of the

Constitution) or a Proclamation issued under Article 356 of the

Constitution has ceased to operate (in the case

of Article

250 of

the Constitution). Although Article 359(1-A) of the Constitution

was not a

part of the Constitution as originally framed, it too

provides for saving things done

or omitted to be done before the

law ceases to have effect.

Brother Chandrachud has sufficiently

dealt with these

and other similar provisions of the Constitution

and it not necessary to repeat the views expressed in this regard.

It is clear, therefore, that in the absence of a savings clause Article

213 the Constitution does not attach any degree

of permanence

to

actions

or transactions pending or concluded during the

currency of an Ordinance. It is apparently for this reason that it

was observed in

Bhupendra Kumar Bose that in view of Article

213(2)(a) of the Constitution, an Ordinance cannot have a savings

clause which extends

the life of actions concluded during the

currency

of the Ordinance. Therefore, there is a recognizable

distinction between a temporary Act which can provide

for giving

permanence to actions concluded under the

temporary Act and

an Ordinance which cannot constitutionally make such a

provision. The reason for this obviously is that a

temporary Act

is enacted by a Legislature while an Ordinance is legislative action

taken

by the Executive. [Paras 55-58] (268-F-H; 269-A-C)

S. Krishnan v. State of Madras (1951] SCR 621 -relied

on.

10. In view of Article 213(2) of the Constitution an

Ordinance cannot, on its own terms, create a right or a liability of

an enduring or irreversible nature otherwise an extraordinary

power would be conferred in the hands of the Executive and the

Governor of the State which is surely not intended by our

Constitution. If such a power were intended to be conferred

H upon the Executive and the Governor of the State, it would be

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 183

bringing in Section 90 of the Government of India Act, 1935 into

our Constitution through the back door. If a situation could be

reversed through the enactment

of a retrospective law, then surely

the status quo ante can be restored on the lapsing

of an

Ordinance

by efflux of time or its disapproval by the Legislative Assembly.

The same can be said

of an action or transaction of an enduring

nature. Undoubtedly, there are a few physical facts

that are of an

enduring nature or irreversible. For example, if an

Ordinance

were to provide for the imposition of the death penalty for a

particular offence and a person is tried and convicted and executed

during the currency of the Ordinance, then obviously an

irreversible situation is created and even if the Ordinance lapses

by efflux

of time or is void, the status

quo ante cannot be restored.

So also in a case of demolition of an ancient or heritage monument

by an Ordinance. Such physically irreversible actions are few and

far between and are clearly distinguishable from 'legally

irreversible' actions. There is a distinction between actions that

are 'irreversible' and actions that are reversible but a burden to

implement. The situations

that arose in

Bliupendra Kumar Bose

and Venkata Reddy were not physically irreversible though

reversing them may have been burdensome. (Paras 64-66) [271-

B-G)

Nabam Rebia v. Deputy Speaker, Arunachal Pradesh

Legislative Assembly (2016) 8 SCC 1:(2016) 6 SCR 1

-relied on.

Validity

of the

Ordinances

11.1. All the Ordinances have ceased to operate and nothing

done

under them now survives after they have ceased to operate.

The validity

of the first three

Ordinances was not challenged by

the employees.

There is no material to hold that the promulgation

of the first

Ordinance and its re-promulgation by the second and

third Ordinances is invalid. Therefore, one can only assume that

the first three Ordinances are valid and the employees are entitled

to the benefits

under them till the date these

Ordinances ceased

to

operate and not beyond, since these

Ordinances were not

replaced by an Act of the State Legislature. It is not every re­

promulgation

of an

Ordinance that is prohibited by D.C. Wadhwa

A

B

c

D

E

F

G

H

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

A v. State of Bihar. There is no universal or blanket prohibition

against re-promulgation of an Ordinance, but it should not be a

mechanical re-promulgation and should be a very rare

occurrence. Additionally, a responsibility is cast on the Governor

of a State by the Constitution to promulgate or re-promulgate an

B

c

D

E

F

G

H

Ordinance only if he is satisfied of the existence of circumstances

rendering immediate action necessary. [Para 68] [272-C-F]

U.2. Only the fourth and subsequent Ordinances wen~

challenged by the employees. As far as the fourth and subsequ~ilt

Ordinances are concerned, their promulgation and re•

promulgation was not adequately justified by the State of Bihar

despite a specific challenge. There was no immediate action

required to be taken necessitating the promulgation of the fourth

Ordinance and its re-promulgation by subsequent Ordinances.

The fourth Ordinance and subsequent Ordinances should be

struck down. In the absence of any challenge to the first three

Ordinances, the benefit given to the employees (such as salary

and perks) by these Ordinances till they ceased to operate arc

justified. However, these three Ordinances did not and could

not

grant any enduring or irreversible right or benefits to the

employees

and the employees did not acquire any enduring or

irreversible right or benefits under these three

Ordinances. Any

right or benefits acquired by them terminated when the

Ordinances ceased to operate. Despite a specific challenge made

to the fourth and subsequent Ordinances, the State of Bihar has

not justified their promulgation. They

are therefore struck down.

The directions given by the High

Court for payment of salary (if

not

already paid) and interest thereon need not be disturbed.

[Paras 69-72] (272-G; 273-A-D]

Bhupendra Kumar Buse v. State uf Orissa OJC No.12

of 1959 decided on 20.03.1959 by the Orissa High Court

[MANU/OR/0014/1960]; D.C. WadlllVa v. State of

Bihar (1987) 1 SCC 378: (1987] lSCR 798-referred

to.

T. S. Thakur, CJI (Concurring)

1. Repeated rcpromulgation of the ordinances was a fraud

on the Constitution especially when the Government of the time

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 185

appears to have persistently avoided the placement of the A

ordinances before the legislature. Even Lokur, J. found

repromulgated ordinances to be unconstitutional except for the

first

three ordinances which, according to His Lordship, survive

not because they were unaffected by the vice

of unconstitutionality

but because they were not challenged by the petitioners. The

need for such a challenge did not arise. Because the first, second

and third ordinances stood repealed by the subsequent ordinances

issued

by the Government. At any rate, since the process of

issuing the ordinances and repromulgation thereof was in the

nature of a single transaction and a part of a single series on the

same subject the vice

of invalidity attached to any such exercise

of power would not spare the first, second and the third ordinances

which would like the subsequent ordinances be unconstitutional

on the same principle. These ordinances provided the foundation

for the edifice

of the subsequent repromulgations. If the edifice

was affected, there is no way the foundation could remain

unaffected by the vice of unconstitutionality. The ordinances in

question

starting with Ordinance 32 of 1989 and ending with

Ordinance 2 of 1992 were all constitutionally invalid, the fact that

none of them was ever placed before the

State legislature as

required

under Article 213 (2) of the Constitution of India. [Para

3] [274-C-H; 275-A]

2. The nature of power invoked for issuing ordinances does

not

admit of creation of enduring rights in favour of those affected

by such ordinances. The ordinances issued in the

instant case

could not have created any enduring rights in favour

of

Sanskrit

school teachers particularly when the ordinances themselves were

a

fraud on the Constitution. The teachers who were paid their

salaries

under the ordinances and who organised their lives and

affairs on the assumption and in the belief that the amount paid to

them was legitimately due and payable cannot

at this distant point

of time be asked to cough up the amount disbursed to them.

Payments already made shall not accordingly be recoverable from

those who have received the same. The question

of interpretation

of Articles 123 (2) and 213(2) in so far as the obligation of the

Government to place the ordinance before the Parliament/

legislature is left open. [Paras 4-6] [275-C-G; 276-G]

B

c

D

E

F

G

H

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

A State of Orissa v. Bhupendra Kumar Bose [1962] Suppl.

2

SCR

380; T. Venkata Reddy v. State ofAndhra Pradesh

(1985) 3 SCC 198 : (1985) 3 SCR 509 -overruled.

D.C. Wadhwa and Ors. v. State of Bihar and Ors. (1987)

1 SCC 378 : (1987] 1 SCR 798 -

referred to.

B

Case Law Reference

In the

Judi:;ment of Dr. D.Y. Chandrachud, J.:

[1987] 1 SCR 798 relied on Para 1

(1998) 3

SCR

206 referred to Para 3

c [1982) 1 SCR 947 referred to Para 33

(1982) 2 SCR 272 referred to Para 34

(1970) 3 SCR 530 referred to Para 37

[1982] 2

SCR 272 referred to Para 39

(1971) 3

SCR 9 referred to Para 39

D

(1978) 1 SCR 1 referred to Para 39

(1994) 2

SCR644 referred to Para 39

[1992] 2 Suppl.

SCR 454 referred to Para

40

(1987) 1 SCR 798 referred to Para 45

E

AIR (1959) AP 471 referred to Para 47

(1955) SCR 893 referred to Para 51

[1962) Supp. (2) SCR

380 Disapproved Para 55

(1985) 3

SCR

509 Disapproved Para 56

(1994] 2

SCR 644 referred to Para 63

F

[1978] 1 SCR 1 referred to Para 63

[1951] SCR 228 referred to Para 65 (2000] 2 Suppl. SCR 211 relied on Para 74

G

In the Judgment of Madan B.Lokur, J.:

(1985] 3

SCR

509 overruled Para2

[1962 Supp (2) SCR 380 overruled Para 28

(1951)

SCR 621 relied on

Para 35

(2016) 6 SCR I relied on Para 66

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 187

[1987) 1 SCR 798 referred to Para 68

In the Judgment of T. S. Thakur, CJI:

[1987) 1 SCR 798 referred to Para 1

(1962) Supp. 2 SCR 380 overruled Para2

[1985) 3 SCR 509 overruled Para2

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5875

of 1994.

From the Judgment and Order dated 09.03.1994 of the High Court

A

B

of

Patna in CWJC No. 7844 of 1990 c

WITH

Civil Appeal No. 5876-5890of1994

Writ Petition (C) No. 580 of 1995

Civil Appeal No. 3533-3595of1995.

Ranjit Kumar, SG, Mukul Rohtagi, AG, A.N.S. Nadkarni, ASG,

T.R. Andhyarujina (A.C.), Salman Khurshid, Rakesh Dwivedi, V. Giri,

C.U. Singh, Sr. Advs., Ms. Madhvi Divan, Ms. Binu Tamta, Dhruv Tamta,

Ritesh Kumar, S.S. Rebello, Amogh V. Prabhudesai, Ajay Sharma,

Subhash Acharya, Pankaj Pandey, B.K. Prasad, L.R. Singh,

Ms. Shabeena Anjum, Ms. Mitali Chauhan, Ms. Gargi Srivastava,

Ms. Shubhi Sharma, Akhilesh Pandey, Gopal Singh, Manish Kumar,

Ms. Vimla Sinha, Rituraj Biswas, Chandan Kumar, Shivam Singh, Aditya

Raina, Shreyas Jain, AdvitiyaAwasthi, Ms. Varsha Poddar, Milind Kumar,

Sagar Chakravarty, Ram Kishore Singh, Ms. Sansriti Pathak,

Ms. Apoorva Garg, Ms. Babita Kushwaha, Devashish Bharuka,

Ms. Anu Tyagi, Ms. Jennifer Rohita, Ms. Jaya Bharuka, Ravi Bharuka,

Ms. Arpita Bishnoi, Manav

Vohra, Ms.

Svadha Shankar, C.D. Singh,

Ms. Sylona Mohapatra, Rahul Rajput, Pankaj Pandey, R.C. Upadhya,

D

E

F

Ms. Madhavi Diwan, B.K.

Prasad, Ms. Nidhi Khanna, Ritin Rai, Niraj

Gupta,

Ms. Anshu Gupta, IrshadAhmad, Ms. Kamini Jaiswal, B.B.

Singh, G

P. Narasimhan, Ms. Manjula Gupta, Gopal Singh, Subhash Sharma, Anil

Kumar, Prem Sunder Jha, R.U. Upadhyay, Rakesh Kumar Sharma, S.R.

Setia, Advs. for the appearing parties.

The following Judgments and Orderofthe Court were delivered

by

H

188

A

B

c

D

E

F

G

A

SUPREME

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

DR. D. Y. CHANDRACHUD, J.

Re-promulgation

of Ordinances : the background to the

teference

A professor of economics who was pursuing his research on land

tenures in Bihar stumbled upon a startling practice. Ordinances were

promulgated and re-promulgated by the Governor ofBihar -two hundred

fifty six

of them between 1967 and 1981. These Ordinances were kept

alive for

la,ng periods, going upto fourteen years. This academic research

into the re~promulgation of Ordinances became the subject of a book

1

and a petition under Article 32 of the Constitution. The book provided

the backdrop

ofajudgment ofa Constitution Bench of this Court in

DC

Wadhwa v. State ofBihar.

2

The Constitution Bench held that the practice

which

had been followed in the State of Bihar was in disregard of

constitutional limitations.An exceptional power given to the Governor to

make Ordinances in extra-ordinary situations had, in the manner

of its

exercise, taken over the primary law making function

of the legislature

in the

state. The Constitution Bench deprecated the rule by Ordinances:

the 'Ordinance-raj'

3

•

2. The judgment of the Constitution Bench was delivered on

20

December 1986. Barely three years after the decision, the Governor of

Bihar promulgated the first of the Ordinances which is in issue in this

case, providing for the taking over

of four hundred and twenty nine

Sanskrit schools in the

state, The services of teachers and other employees

of the school were to stand transferred to the state government subject

to certain conditions (which would be elaborated upon later in this

judgment). The first Ordinance was followed by a succession of

Ordinances. None of the Ordinances, which were issued in exercise of

the power of the Governor under Article 213 of the Constitution, were

placed before the state legislature as mandated. The state legislature.did

not enact a law in terms

of the Ordinances. The last of them was allowed

to lapse.

-

3. Writ proceedings were initiated before the Patna High Court

by the staff of the Sanskrit schools for the payment of salaries. Those

proceedings resulted in a judgment of the Patna High Court. When the

1

Re-promulgation of Ordinance: A fraud on the Constitution oflndia

2

(1987) 1 sec 378

H ' [Id. at paragraph 8, page 395]

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 189

[DR. D.

Y. CHANDRACHUD, J.]

appeal against the decision

of the High Court came up before a Bench A

of two judges of this Court in Krishna Kumar Singh v.

State ofBihar4,

both the judges -Justice Sujata Manohar and Justice b P Wadhwa -

agreed in holding that all the Ordinances, commencing with the second,

were invalid since their promulgation was contrary to the constitutional

position established in the judgment

of the Constitution Bench. Justice B

Sujata

Ma~ohar held that the first Ordinance was also invalid being a

part

of the chain of

Ordinances. Justice Wadhwa, however, held that the

first Ordinance is valid and that its effect would endure until it is reversed

by specific legislation. The difference

of opinion between the two judges

was in their assessment

of the constitutional validity of the first

Ordinance;

one of them holding that it is invalid while the other held it to be C

constitutional.

4. When the case came

up before a Bench of three

judges>, it

was referred to a Bench

of five judges on

the ground that it raised

substantial questions relating

to the Constitution.

6

The proceedings before

the Constitution Bench on

23 November

2004 have resulted in a reference D

to a larger Bench of seven Judges. The basis of the reference is best

understood from the order

of reference which

reads thus :

"During the course of hearing, Mr. P.P. Rao, learned senior counsel

for the appellants placed reliance on the decisions

of this Court in

State

ofOrissa vs. Bhupendra Kumar Bose, 1962 (Supp.2) SCR E

380 .and T.Venkata Reddy and Ors. vs. State of Andhra Pradesh,

1985 (3) SCC 198. The learned Solicitor General brought to the

notice

of this Court the decision in State of

Punjab vs. Sat Pal

Dang & Ors., 1969 ( 1) SCR 4 78. All these decisions are

Constitution Bench decisions. Mr.Rakesh Dwivedi, learned senior F

counsel for the respondent-State ofBihar, however, relied on a 9-

Judge Bench decision

of this Court in S R Bommai and

Ors. vs.

Union

of India and Anr., 1994 (3) SCC

.1 and in particular

paragraphs 283 to 290 thereof.

We are of the opinion that these matters call for hearing by a 7-G

Judge Bench

of this Court. Be listed

accordingly."

'(1998) 5 sec 643

5

Justices SP Bharucha, GB Pattanaik and S RajendraBabu

•Order dated 6 November 1999 in CA 5875 of 1994

H

190

A

B

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

As the above extract indicates, the three decisions of Constitution

Benches which have been noticed are those in

Bhupendra Kumar

Bose, T Venkata Reddy

and

Satpal Dang. The nine judge Bench

decision in Bommai was relied upon, on the other hand by counsel for

the State. Bommai, it has been urged, warrants a reconsideration of

the earlier decisions. That has given rise to the reference.

B The Ordinances

5. The first Ordinance, called The Bihar Non-Government Sanskrit

Schools (Taking Over of Management and Control) Ordinance, 1989 -

was promulgated by the Governor of Bihar on 18 December 1989

7

•

c The Ordinance contains a recital of the satisfaction of the Governor

that:

"44 .... circumstances exist which render it necessary for him to

take immediate action for the taking over

of non-government

Sanskrit schools for management and control by the

State

D Government for improvement, better organization and development

of Sanskrit education in the State of Bihar." (Id at pg.665)

Clause 3

of the Ordinance provided for the taking over of the management

and control of four hundred and twenty nine Sanskrit schools (named in

Schedule 1) by the state government. Clause 3 was as follows:

E "3. Taking over of management and control of non-government

Sanskrit schools by State Government - (I) With effect from the

date

of enforcement of this Ordinance 429,

Sanskrit schools

mentioned in Schedule I shall vest in the State Government and

the State Government shall manage and control thereafter.

F

G

(2) All the assets

and properties of all the Sanskrit schools

mentioned in sub-section (I) and of the governing bodies, managing

committees incidental thereto whether moveable or immovable

including land, buildings, documents, books and registers, cash­

balance, reserve fund, capital investment, furniture and fixtures

and other things shall, on the date

of taking over, stand transferred

to and vest in the

State Government free from all encumbrances."

Clause 4 made a provision for the transfer to the state government of

those teaching and non-teaching employees of the schools who were

appointed permanently or temporarily against sanctioned posts in

H 'Ordinance 32 of 1989

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 191

[DR. D. Y. CHANDRACHUD, J.]

accordance with the prescribed standard and staffing pattern prescribed A

by the state government prior to the Ordinance. Staff in excess of the

sanctioned strength and those not possessing the required qualifications

or fitness were to stand automatically terminated. Clause 4 was in the

following terms :

"4 Effect of taking over the management and control-( 1) With

effect from the date

of vesting of Sanskrit schools mentioned in

Schedule 1 under Section 3(

1) in the State Government, the

services

of all those teaching and non-teaching employees of the

schools mentioned in Schedule

1, who have been appointed

permanently/temporarily against sanctioned posts in accordance

with the prescribed standard, staffing pattern as prescribed by

the State Government prior

to this

Ordinance shall stand transferred

to the State Government. He shall be employee

of the State

Government with whatsoever designation he holds:

B

c

Provided, that the services of those teaching or non-teaching

employees who are in excess

of the sanctioned strength or do not D

possess necessary fitness/qualification shall automatically stand

terminated.

(2) Teachers

of the Sanskrit schools taken over by the Government

shall be entitled

to the same pay, allowances and pension etc. as

are admissible to teaching and non-teaching employee

of the taken­

over secondary schools

ofBihar".

Under clause 5, management and control of the schools taken over by

the state government was to remain with the Director

of Education of

the Government, incharge of Sanskrit Education. The

Ordinance made

provisions for, among

other things, the constitution of managing

committees (clause 6), powers and

functio!].S of managing committees

(clause 7), functions

of the Headmasters (clause 8), accounts and audit

of the Sanskrit schools taken over by the State Government (clause 9),

constitution

of a Sanskrit Education Committee relating to development

of Sanskrit education in the State (clause

10), offences and penalties for

contravention

of the provisions of the

Ordinance (clause 11 ), cognizance

of offences (clause 12), protection of action taken in good faith (clause

13), power

to make rules (clause 14) and power to remove difficulties

(clause 15).The schedule to the

Ordinance listed out four hundred and

twenty nine Sanskrit schools situated in several districts

of the state.

E

F

G

H

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

A Along side each school was the strength

of standard teaching and non-

teaching staff.

·

6. Ordinance 32 of 1989 was promulgated on 16 December 1989

and was published in the Bihar Gazette Extra ordinary on

18 December

1989. The life

of the first Ordinance

8

was for a period of two months

B and two weeks since by virtue

of the provisions of Article 213(2)(a) it

ceased to operate at the expiration

of six weeks from the reassembling

of the 'legislature. The session of the Vidhan Sabha concluded on 25

January 1990.

On 28 January 1990 the second in the succession of

Ordinances was promulgated. The next session of the Vidhan Sabha

was held between 16 March 1990 and 30 March 1990. On 2 May 1990

C the 'third in the succession of Ordinances

9

was promulgated. The next

session

of the Vidhan Sabha took place between 22 June

1990 and 9

August 1990, as a result of which the life of the Ordinance was about

three months. The first, second and third Ordinances were in similar

terms.

D

E

7.

On 13 August 1990 the Governor promulgated a fresh

Ordinance.

10

This Ordinance contained in clauses 3 and 4, provisions

which were materially different from those

of the first three Ordinances.

Clauses 3 and 4 provided

as

f9llows :-

"3 Taking over of management and control of non-government

Sanskrit schools by State

Government.-( l) With effect from the

date

of enforcement of this Ordinance, 429 Sanskrit schools

mentioned in Schedule 1 shall vest in the State Government and

the State Government shall manage and control thereafter. ...

But the Sanskrit schools mentioned inAnnexure 1

of this Ordinance

F will be investigated through the Collector concerned and

if it will

be found in the report

of the Collector that such school is not in

existence, in this case State Government will remove the name

of

that school fromAnnexure 1 of the Ordinance through notification

in State Gazette.

G (2) All the assets and properties

of all the Sanskrit schools,

mentioned in sub-section (

1) and ofthe governing bodies, managing

'The Vidhan

Sabha was convened for its 11th session which lasted from 29 June 1989

to 3 August 1989 after the Ordinance was promulgated, the 12th Session of the Vidhan

Sabha commenced on 18 January 1990.

•Ordinance 14of1990.

H " Ordinance 21 of 1990

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 193

[DR. D. Y. CHANDRACHUD, J.]

committees, incidental thereto whether moveable or immovable A

including lands, buildings, documents, books and registers, cash­

balance, reserve fund, capital investment, furniture and fixture

and other things, shall

on the date of taking over, stand transferred

to and vest in the

State Government free from all encumbrances.

4. Effect of taking over the management and control.-( I) B

The staff working in the Sanskrit schools mentioned in Annexure

1 of the Ordinance related to integration of its management and

control into the State Government as per Schedule 3(1), will not

be

the employees of this school until and unless the Government

comes

to a decision regarding their services.

(2)

State Government will appoint. a Committee of specialists and

experienced persons to enquire about the number

of employees,

procedure

of appointment as well as to enquire about the character of

c

the staff individually and will come on a decision about

validit)'. of posts

sanctioned by governing body

of the school, appointment procedure and

affairs

of promotions or confirmation of services. Committee will consider D

the need

of institution and will submit its report after taking stock of the

views regarding qualification, experience

and other related and relevant

subjects. Committee will

also determine in its report whether the directives

regarding reservation for

SC, ST and OBCs has been followed or not.

(3) State Government, after gettingthe report, will determine the number E

of staff as well as procedure of appointments and will go into the affair

of appointment of teaching and other staff on individual basis and in the

light

of their merit and demerit will determine whether his service will be

integrated with the Government or

not. Government will also determine

the place, salary, allowances and other service conditions for

them". F

Clause

16 provided for repeals and savings in the following terms: "16. Repeal and savings.-(!) The Bihar Non-Government

Sanskrit Schools (Taking Over of Management and Control)

Ordinance, 1990 (Bihar Ordinance 14, 1990) is hereby repealed.

G

(2) Notwithstanding such repeal, anything done or any action taken

in exercise of the powers conferred by or under the said Ordinance

shall be deemed

to have been done or taken in exercise of

the

pow~rs conferred by or under this Act as if this Act were in force

on the date

on which such thing was done or action

taken."

H

194

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B

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E

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

Since the next session

of the Vidhan Sabha commenced on 22 November

1990 the life of the Ordinance was about four months and two weeks.

The fifth in the series

of Ordinances

11

was promulgated on 8 March

1991. The session

of the Vidhan Sabha took place between 21 June

1991 and 2 August 1991. Soon after the conclusion

of the session the

sixth in the series

of Ordinances was promulgated on 8 August 1991.

12

The next session of the Vidhan Sabha took place from 1 December

1991to18 December 1991.

Upon the conclusion of the session, the

seventh

of the Ordinances was promulgated on

21January1992.13 The.

session of the Vidhan Sabha took place between 20 March 1992 and 27

March 1992. The Ordinance lapsed on 30 April 1992.

8. The Ordinances promulgated by the Governor followed a

consistent pattern. None

of the Ordinances was laid before the legislature.

Each one

of the Ordinances lapsed by efflux of time, six weeks afterthe

convening of the session of the legislative assembly. When the previous

Ordinance ceased to operate, a fresh Ordinance was issued when the

legislative assembly was not in session. The legislative assembly had no

occasion to consider whether any

of the Ordinances should be approved

or disapproved.

No legislation to enact a law along the lines of the

Ordinances was moved by the government in the legislative assembly.

The last

of the Ordinances, like its predecessors, cease to operate as a

result

of the constitutional limitation contained in Article 213 (2)(a). The

subject was entirely governed by successive Ordinances; yet another

illustration

of what was described by this Court as an Ordinance raj

barely three years prior to the promulgation

of the first in this chain of

Ordinances.

F C

Proceedings before the High Court

9. The High Court framed the following issues for consideration :

(i) Whether the Sanskrit schools stood denationalised upon the

expiry

of the Ordinances;

G (ii) Whether as a result

of clause 4 of the fourth Ordinance

14

the

H

employees had ceased to be government servants which they

" Ordinance I 0 of 1991

12

Ordinance 31 of 1991

" Ordinance 2 of 1992

14

Ordinance 21 of 1990

KRlSHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 195

[DR. D. Y. CHANDRACHUD, J.]

have become in terms of the first Ordinance

15

promulgated A

on

18 December 1989;

(iii) Whether the fourth Ordinance was

ultra vires Article 14 of

the Constitution;

(iv) Whether the services

of the teachers must be regularised and

they ought to be treated

as government servants; and

(v) Whether, in any event the petitioners were entitled

to their

salaries and emoluments.

10. The High Court held that there was no permanent vesting of

the schools in the State of Bihar, notwithstanding the expiry of the

Ordinances. In the view

of the High Court, the power to promulgate

Ordinances is not a rule but an exception and is conferred upon the

Governor to deal with emergent situations. The High Comi held that in

the present case there was a promulgation

of successive Ordinances

contrary to the decision

of the Constitution Bench in D C Wadhwa.

Moreover, none

of the Ordinances has been laid before the legislature.

As a result, the legislature was deprived

of its authority to consider

whether the Ordinances should or should not be approved. The High

Court held that the failure to comply with the constitutional obligation to

place the Ordinances before the legislature would have consequences:

the Ordinances which were re-promulgated repeatedly were

ultra vires

and the petitioners had derived no legal right to continue in the service of

the state. The High Court

noted that the fourth Ordinance made a

departure from the earlier Ordinances since the state government had

found that many teachers who did not fulfil the requisite criteria would

have become government servants.

It was, in the view of the High Court,

permissible for the state to modify a provision which had been made in

an earlier Ordinance and only those who pas.sed the rigours

of the

provisions made in the fourth Ordinance were to become government

servants. This finding was subject to the basic conclusion that all the

Ordinances were unconstitutional.

On the aspect of whether directions

for the payment

of salary were warranted, the High Court noted that

upon inquiry three hundred and five schools were found to be genuine,

while at least one hundred and one did not fulfil the criterion for being

taken over. The High Court held that the petitioners were entitled to

salary

as government servants until

30 April 1992, the last date of the

"Ordinance 32 of 1989

B

c

D

E

F

G

H

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

A validity of the Ordinances, for the period during which the Ordinances

had subsisted. The High Court finally held that in terms of its findings

the management

of the schools would be governed in the same manner

that prevailed prior

to the promulgation of the first

Ordinance,

B

c

D

E

F

D The two differing judgments

11. Before the Bench of two judges of this

Court

16

, there was an

agreement in the two separate judgments delivered by Justice Sujata V

Manohar and Justice D P Wadhwa that commencing with the second

ordinance, the re-promulgated Ordinances were ultra vires. Justice

Sujata Manohar held that

the manner in which a series of

Ordinances

was promulgated by the State of Bihar constituted a fraud on the

Constitution. In the view of the learned judge:

"24 .... The State ofBihar has not even averred that any immediate

action was required when the 1st Ordinance was promulgated. It

has not stated when the Legislative Assembly was convened after

the first Ordinance or any of the subsequent Ordinances, how

long it was in session, whether thee Ordinance in force was placed

before

it or why for a period of two years and four months proper

legislation could

not be passed. The constitutional scheme does

not

pennit this kind of Ordinance Raj. In my view, all the Ordinances

form a part of a chain of executive acts designed to nullify the

scheme of Article 213. They take colour from one another and

perpetuate one another, some departures in the scheme of the 4th

and subsequent Ordinances notwithstanding. All are

unconstitutional

and invalid particularly when there is no basis

shown

for the exercise of power under Article 213. There is also

-

no explanation offered for promulgating one

Ordinance after

another.

If the entire exercise is a fraud

on tlie power conferred

by Article 213, with no intention of placing any Ordinance before

the legislature, it is difficult to hold that the first Ordinance is valid,

even though all the others may be invalid". (Id at pg.658)

G Alternatively,

on the hypothesis that the first

Ordinance was valid, Justice

Sujata Manohar held that it would have ceased to operate upon the

lapse of a period of six weeks of the reassembling of the state legislature.

Any effect that the Ordinance had would come to an end when it ceased,

unless

it is permanent. Addressing the issue of what is meant by a

H

"The Referring judgment is reported in (1998) 5 SCC 643:See paragraph 24 at page 161

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 197

[DR. D. Y. CHANDRACHUD, J.]

permanent effect or a right

of an enduring nature which subsists beyond A

the life

of an Ordinance, the learned Judge held thus:

"30 ... Every completed event is not necessarily permanent. What

is done can often be undone. For example, what is constructed

can be demolished. A benefit which

is conferred can be taken

away.

One should not readily assume that an Ordinance has a B

permanent effect, since by

its very nature it is an exercise of a

limited and temporary power given

to the executive. Such a power

is not expected to be exercised to bring about permanent changes

unless the exigencies

of the situation so demand. Basically, an

effect of an Ordinance can be considered as permanent when

that effect

is irreversible or possibly,

when it would be highly C

impractical or against public interest

to reverse it, e.g., an election

which

is validated should not again become invalid. In this sense,

we consider as permanent or enduring that which is irreversible.

What

is reversible is not

permanent."

(Id at pg.660) D

In this view, when the Ordinance taking over private schools lapsed, the

status

quo ante would revive. The first Ordinance was held not to have

any permanent effect. Hence, even if the first Ordinance were to be

valid (which

in the view of the learned judge it was not), the teachers

could be considered

as government servants only for its duration.

Moreover, it

was held that nothing was done under the first Ordinance;

the

inquiry for the purpose of take over under the fourth Ordinance

could not be completed

as a result of an interim stay and since all the

Ordinances had ceased

to operate and none of them could be considered

as permanent in effect, no directions could be given for enforcing them.

12. Justice D

P Wadhwa, on the other hand differed with the

view

of Justice Sujata Manohar

'in regard to the validity of the first

Ordinance. The learned Judge formulated his reasons in the following

propositions :

E

F

"59 .... (1) It is fairly established that Ordinance is the "law" and G

should be approached

on that basis.

(2) An Ordinance which

has expired has the same effect as a

temporary Act

of the legislature.

(3) When the Constitution says that Ordinance-making power

is

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

A a legislative power and an Ordinance shall have the same fqrce

as an Act, an Ordinance should be clothed with all the attributes

of an Act of the legislature carrying with it all its incidents,

immunities and limitations under the Constitution and it cannot be

treated as an executive action or an administrative decision.

B (

4) Regard being had to the object of the Ordinance and the right

created

by it, it cannot be said that as soon as the Ordinance

expired the validity

of an action under the Ordinance came to an

end and invalidity

of that action revived.

( 5) What effect of expiration of a temporary Act would be must

c depend upon the nature of the right or obligation resulting from

the provisions

of the temporary Act and upon their character

whether the said right and liability are enduring or not.

( 6) If the right created by the temporary statute or Ordinance is

of enduring character and is vested in the person, that right cannot

D

be taken away because the statute by which it was created has

expired.

(7) A person who has been conferred a certain right or status

under temporary enactment cannot be deprived

of that right or

status in consequence

of the temporary enactment expiring.

E (

8) An Ordinance is effective till it ceases to operate on the

happening

of the events mentioned in clause (2) of Article 213.

Even if it ceased to operate, the effect of the Ordinance is

irreversible except by express legislation.

(9) A mere disapproval by the legislature of an Ordinance cannot

F revive closed or completed transactions.

(I 0) State Legislature is not powerless to bring into existence the

same state

of affairs as they existed before an Ordinance was

passed even though they may be completed and closed matters

under the Ordinance. An express

Jaw can be passed operating

G retrospectively

to that effect subject to other constitutional

limitations." (id at pgs.677-678)

In the view

of the learned Judge: "67 ..... The effect of the first Ordinance has been of enduring

H

nature. Whatever the Ordinance ordained was accomplished. Its

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 199

[DR. D.

Y. CHANDRACHUD, J.]

effect was irreversible. The Ordinance was promulgated to A

achieve a particular object

of taking over the

Sanskrit schools in

the State including their assets and staff and this having been

done and there being no legislation to undo the same which power

the legislature did possess, the effect

of the Ordinance was of

permanent nature. The Ordinance is like a temporary law enacted B

by the legislature and

if the law lapses, whatever has been achieved

there under could not be undone, viz.,

if under a temporary law

land was acquired and building constructed thereon, it could not

be said that after the temporary law lapsed the building would

be

pulled down and land reverted back to the original

owner". (Id at

~~) c

In this view, rights which had been vested could not be taken away

unless the legislature was to enact a law taking them away and re­

vesting the property in the managing committee. The rights which had

vested in the employees were held to be

of an enduring character which,

it was held, could not be taken away merely because the Ordinance, like

a temporary statute ceased to operate. Justice Wadhwa thus approached

the matter in dispute from two perspectives. Firstly, the Ordinance was

placed on the same footing as a temporary statute and was held to have

created rights

of an enduring character that would survive the Ordinance

upon its ceasing to operate. Secondly, vested rights created under the

Ordinance could, in this view, be reversed only by a fresh legislation

enacted by the legislature. The essential difference between the

perspectives

of the two judges was precisely this: while Justice

Sujata

Manohar held that all the Ordinances were part of a chain of promulgation

and re-promulgation and constituted a fraud on the Constitution, Justice

Wadhwa held that it was only the re-promulgation after the first Ordinance

that was

ultra vires. The first Ordinance was in his view a valid exercise

of constitutional power and had created enduring rights which would

continue even after the Ordinance ceased to operate. This enduring

consequence could only be reversed by legislation.

13. Now it is in this background that it would be necessary to

advert to the evolution and scope

of the Ordinance making power.

E Historical evolution

E.1 England

14. In the United Kingdom, the prerogative of the Monarch to

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A legislate domestically was set at rest about four hundred years ago by

Sir Edward Coke by his opinion in The Case

of

Proclamations.

17

• The

opinion ruled that :

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"The King by his proclamation or other ways cannot change any

part

of the common law, or statute law, or the customs of the realm".

The Law of England, it held, is divided into three parts : common law,

statute law and custom. The King's proclamation was held to be none

of

the above. The King, it was

ru!Cd, had no prerogative but that which the

law

of the land allowed him. The vestiges of the power of the King to

legislate upon British citizens were wiped out by the Bill

of Rights in

1689 or in any event, by 1714. In his judgment in

Pankina v Secretary

of State for the Home Department,

18

Lord Justice Sedley speaking

for the Court

of Appeal observed :

"The exercise of the Monarch's prerogative has passed since

1689 -or perhaps more precisely,

as Anson's Law and Custom

of the Constitution suggests, since 1714 -to ministers of the

Crown.

It is they who are now constitutionally forbidden to make

law except with the express authority

of Parliament: hence their

need for statutory power to make delegated legislation. As

Lord

Parker of Waddington said inThe Zamora [1916] 2 AC 77, 90:

"The ideas that the King in Council, or indeed any branch

of the executive, has power to prescribe or alter the law

to be administered by the courts of law in this country is

out of harmony with the-principles of our Constitution"."

(emphasis supplied)

15.

Tracing the evolution of the King's power to make

proclamations in England following the opinion

of Sir Edward Coke,

Shubhankar Dam

in a recently published work on the

subject

19

observes:

"Although the decision brought conceptual clarity, regal practice

varied. Monarchs continued making Ordinances

(of the unlawful

kind) and enforced them too.

Only with the establishment of

parliamentary supremacy towards the end of the seventeenth

17

(1611) 12 Co Rep 74

IS [2010] 3 WLR 1526

19

Shubhankar Dam -"Presidential Legislation in India The Law and Practice of

H Ordinances [Cambridge University Press-page 144 at pages 37, 38]

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[DR. D.

Y. CHANDRACHUD, J.]

century did the law and practice

of Ordinances finally become

consistent; from then on, it would always be a subordinate legislative

power ... By the close of the seventeenth century, statutes

represented parliament's ultimate authority to enact legislation

whereas Ordinances, generally speaking, came to represent the

executive's more limited authority to make narrow and specific

regulations".

E.2 · British India

16. The dilution of the power of the MotMtch in England to rule

by proclamations was in sharp contrast to the position which prevailed in

the British colonies. The -Governor Generals as representatives

of the

Crown were vested with extensive authority to issue

Ordinances. The

Indian Councils Act, 1861 empowered the Governor General to issue

directions which had the force oflaw. A power was conferred upon the

Governor General to issue ordinances by Section 23, subject to two

conditions : (i) the power could be exercised in cases

of emergency; and

201

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(ii) an Ordinance would remain in force for a period of not more than six D

months from its promulgation. Under the Government

of India Act, 1915,

the power to issue Ordinances was retained. In the Government

oflndia

Act, 1935, Section 42 empowered the Governor General to promulgate

ordinances when the Federal Legislature was not in session provided

that he was satisfied that circumstances existed which made it necessary

that such a law be passed without awaiting reassembly

of the legislature.

Section 42(2) provided that an Ordinance promulgated under that

provision would have the same force and effect as an Act

of the Federal

Legislature

but was required to be laid before the legislature. The.

Ordinance would cease to operate upon the expiration of six weeks

from the reassembly

of the legislature or ifbefore that period, resolutions

disapproving it were passed by the legislature. The Governor General

was in certain cases required to exercise his individual judgment for the

promulgation

of an Ordinance while in others, he was to act on the

instructions

of His Majesty. Section 43 enabled the Governor General to

issue Ordinances valid for a period

of six months and extendable by a

further period

of six months if he was satisfied that circumstances existed

rendering it necessary for him to take immediate action to enable him to

satisfactorily discharge such functions in respect

of which he was to act

in his discretion or individual judgment. Under Section

44, the Governor

General was vested with power to enact in the form

of a Governor

General's Act, a law containing such provisions and to attach to his

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

A message to the chambers of the legislature a draft bill which he considered

necessary. Similar powers were vested in the provincial Governors. Wide

powers were hence conferred upon the Governor General by Sections

42, 43 and 44.

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Constituent Assembly

17. The Union Constitution Committee was appointed by the

Constituent Assembly on 30April 1947 to report on the 'main principles

of the Constitution'. The memorandum which was prepared by B N

Rau, the constitutional advisor envisaged a constitutional power for making

ordinances. The memorandum contemplated that the

President may

promulgate an ordinance when Parliament is not in session, upon

satisfaction that circumstances exist requiring immediate action. The

ordinance would have the same force and effect as an Act

of Parliament

but would remain in force for a period not more than six weeks from the

reassembly

of Parliament [see in this context B Shiva Rao: The

Framing

of India's Constitution

20

]. B N Rau acknowledged that

ordinances were the subject

of great criticism under colonial rule but

sought to allay the apprehensions which were expressed on the ground

that the

President would normally act on the aid and advice of ministers

responsible to Parliament and was not likely to abuse the ordinance

making power.

18. After the report

of the Union Constitution Committee was

submitted

to the Constituent Assembly, the ordinance making power came

up for discussion on

23 May 1949.

Professor KT Shah observed that

however justified such a power may appear to be it was "a negation of

the rule of law". He therefore suggested that the power should be so

structured as to retain an extraordinary character to deal with emergent

situations :

" ... Of course in extraordinary circumstances, as in the case of

an emergency, the use of extraordinary powers would be both

necessary and justified. I think that it

is important, therefore to make it clear, in the heading itself that this is an avowedly

extraordinary power which may take the form

of the legislation

without our calling its legislative power. Legislative power the

executive head should not have.

Or it may even take the form of

an executive decree or whatever form seems appropriate in the

circumstances. The point that I wish to stress is that we must not,

20

Universal Law Publishing New Delhi (2006) Vol .Tl page 485

KRISHNA KUMAR SINGH ~ ANR. v. STATE OF BIHAR 203

[DR. D. Y. CHANDRACHUD, J.].

by any mention here imply or convey or suggest that the law A

making powers

of the President are any but extraordinary powers.

I think this is sufficiently clear, and will be acceptable to the House."

Another member of the Constituent Assembly, B Pocker Sahib, moved

an amendment for the inclusion

ofa proviso in draft Article 102(1) in the B

following terms :

"Provided that such ordinance shall not deprive any citizen of his

right to personal liberty except on conviction after trial by a

competent court

of

law."

This amendment was moved with a view to securing the fundamental

right

of the citizen to be tried

by a court oflaw.

c

19. H V Karnath moved an amendment that would ensure that an

ordinance upon promulgation shall be

laid before both Houses of

Parliament within four weeks of its promulgation. This, he observed,

was necessary to restrict

the. ordinance making power

"as far as we D

can" and to provide "a constitut}onal safeguard against the misuse of

this article". This objection was responded to by observing that since

Parliament had to be convened atleast twice every year and not more

than six months would intervene between the last sitting and the date

appointed for the next session, an ordinance could not continue for a E

period

of more than seven and a half months.

20. Pandit H N Kunzru moved an amendment to the effect that

the tenure

of an ordinance should not exceed thirty days from its

promulgation (instead

of six weeks from the reassembly of Parliament).

He observed that there were several countries in which the executive

did not possess an ordinance making power and there was no justification

"in the new circumstances" for arming the executive with wide powers

of the nature that were conferred by the Government oflndiaAct, 1935.

He opined that the duration

of seven and a half months was too long for

the operation

of an ordinance. Kunzru observed :

" .... .I think therefore that the period should be long enough to

enable the legislature to meet and consider the extraordinary

situation requiring the promulgation

of an

Ordinance, at any rate

an Ordinance made necessary by factors affecting the peace or

security

of the

country."

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SUPREME

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"But when the ordinance relates to the peace or security of

the country, or to similar circumstances, requiring

extraordinary action to be taken by the executive under an

Ordinance, then I think, we have to see that the period during

which the Ordinance remains in force is as short as possible,

and that any legislation that may be required should be

passed

by Parliament after a due consideration of all the

circumstances."

"It is therefore necessary that the legislature should be given

an opportunity, not merely of considering the situation

requiring the passing

of an Ordinance, but also the terms of

the

Ordinance."

21. Professor K T Shah expressed the view that even if an

prdinance was issued to meet extraordinary circumstances, it must be

laid immediately upon the assembling of Parliament and must cease to

operate forthwith unless it was approved by a specific resolution. He

supported the restriction which he proposed on the following grounds :

"Most of us, I am sure, view with a certain degree of dislike or

distrust the ordinance-making power vested in the Chief Executive.

However,

we may clothe it, however it may necessary, however

much it may be justified, it is a negation

of the rule oflaw. That is

to say, it is not legislation passed by the normal Legislature,

and

yet would have the force of law which is undesirable. Even if it

may be unavoidable, and more than that,

even ifit may be justifiable

in the hour

of the emergency, the very fact that it is an extraordinary

or emergency power, that it is a decree or order of the Executive

passed without deliberation by the Legislature, should make it clear

that it cannot be allowed, and it must not

be allowed, to last a

minute

longer than such extraordinary circumstances would

require."

22. Sardar Hukam Singh moved an amendment which provided

for the

need for consulting the Council

Of Ministers :

"It may be said that conventions would grow automatically and

the President shall have to take the advice

of his Ministers. My

submission is that here conventions have yet to grow. We are

making

our

President the constitutional head and we are investing

him with powers which appear dictatorial. Conventions would

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[DR. D. Y. CHANDRACHUD, J.].

grow slowly and as this constitution is written and every detail is

being considered,

why should we leave this fact to caprice or

whim of any individual, however high he may be? If we clearly

put down that he is to act on the

advice of his Ministers, it is not

derogatory to his position."

23. The amendments which were proposed were opposed by P S

Deshmukh and Dr B R Ambedkar. P S Deshmukh observed that the

draft article had a provision that

if and so far as an ordinance made any . provision which Parliament would not under the Constitution be

competent to enact, it shall be void. Dr Ambedkar, opposing the

amendments, observed that while the Governor General under Section

43 of the G<;>vernment of India Act, 1935 was a parallel legislative authority

with

an independent power oflegislation even when Parliament was in

session draft Article I

02 conferred an ordinance making power upon

the President only when the legislature was not in session. Justifying the

conferment of the power Dr Ambedkar observed thus :

"My submission to the House is that it is not difficult to imagine

cases where the powers conferred

by the ordinary law existing at

any particular moment may be deficient to deal with a situation

which may suddenly and immediately arise. What is the executive

to do? The executive has got a new situation arisen, which it must

deal with ex hypothesi it has not got the power to deal with that in

the existing code oflaw. The emergency must

be dealt with, and

it seems to me that the only solution is to confer upon the President

the

power to promulgate a law which will enable the executive to

deal with that particular situation because it cannot resort to

the

ordinary process of law because, again ex hyhpothesi, the

legislature is not in session."

24. Dr Ambedkar rejected the suggestion that an ordinance should

automatically cpme to an e-nd upon the expiry o(thirty days from its

promulgation. The objections expressed byH N Kunzruto the duration

of an ordinance were not accepted on the ground that Parliament had to

· be convened at intervals not exceeding six months. Moreover, he also

clarified that the President was to act on the aid and advice

of the Council

of Ministers. Draft Article

102 was accordingly approved.

G The Ordinance making power

25. Chapter N of the Constitution contains a single constitutional

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

A provision: Article 213. The title to Chapter IV is descriptive of the nature

of the power. The power is described as the "Legislative power of the

Governor". The marginal note to Article 213 describes it as a "power of

Governor to promulgate Ordinances during recess oflegislature".

26. The Constitution has followed the same pattern while

B enunciating the Ordinance making power

of the President. Chapter III

contains a sole

Article, Article 123 which specifies the "legislative power"

of the President to promulgate Ordinances when Parliament is not in

sess10n.

c

D

Article 213 provides as follows :

"213. Power of Governor to promulgate Ordinances during

recess of Legislature.-(!) If at any time, except when the

Legislative Assembly

of a State is in session, or where there is a

Legislative Council in a State, except when both Houses

of the

Legislature are in session, the Governor is satisfied that

circumstances exist which render it necessary for him to take

immediate action, he may promulgate such Or.dinances

as the

circumstances appear

to him to require:

Provided that the Governor shall not, without instructions from

the President, promulgate any such Ordinance

if-

E (a) a Bill containing the same provisions would under this

Constitution have required the previous sanction

of the President

for the introduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill

containing the same provisions for the consideration

of the

F President; or

G

H

( c) an Act of the Legislature of the State containing the same

provisions would under this Constitution have been invalid unless,

having been reserved for the consideration

of the President, it

had received the assent

of the President.

(2) An Ordinance promulgated under this article shall have

the same force and effect as an Act

of the Legislature of the

State assented to by the Governor, but every such Ordinance-

(a) shall be laid before the Legislative Assembly of the State,

or where there is a Legislative Council in the State, before both

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) 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

B

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 E

the Legislature bf the State which has been reserved for the

consideration

of the

President and assented to by him."

27. 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

F

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 G

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

208

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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

c

D

repository of the power to enact law. The legislative power of the

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

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.

28. 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

[DR.

D.

Y. CHANDRACHUD, J.]

his opinion would, if it were to become a law, derogate from the powers

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

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.

29.

An Ordinance which is promulgated by the Governor has (as

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.

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 of Article 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

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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

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 :

(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

(iii) In the event

of the Ordinance being withdrawn by the

Governor.

30. The laying of an Ordinance before the legislature is mandatory.

Textually, the sense that this is a mandatory requirement is conveyed by

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 ).

31. 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

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

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 211

[DR. D. Y. CHANDRACHUD, f.]

Seventh Schedule. Constitutional control of Parliament and the state A

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 B

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

32. 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

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

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

c

D

E

F

H.1 Nature of the power

33. The headings of both Chapters III and IV indicate that while

promulgating Ordinances, the

President under Article 123 and the

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 oflndia

21

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

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 oflegislation

22

". Among

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:

B

c

" ... The conferment of such power may appear to be undemocratic D

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 E

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)

34. 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

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)

G

H

214

A

B

c

D

E

F

G

H

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

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

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

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 "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,

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

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

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]

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)

35. 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 of Articles 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

36. 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

37. 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

216

A

B

c

D

E

F

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

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

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)

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.

38. The Constitution (Thirty Eighth Amendment) Act, 1975 was

brought into force on 1 August

1975 during the period of the internal

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:

"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

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.

39.

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)

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:

c

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 of America 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 F

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 G

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

218

A

B

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

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

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

E

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

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

of Article 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 A

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

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)

B

c

40. 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

F

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 G

power. This essentially involves a situation where the power has been

exercised to secure an oblique purpose.

Jn exercising the power of judicial

review, the court must be mindful both

of its inherent limitations as well

as of the entrustment of the power to the head of the executive who

" (1992) Supp. (3J sec 217 H

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

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.

c

D

J Re-promulgatio11

41. 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,

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

42. The rationale for the conferment of a power to promulgate

ordinances upon the President and the Governors

is that the law,

E 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

F

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

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 221

[DR. D.

Y. CHANDRACHUD, J.]

circumstances which can brook no delay in the formulation oflegislation.

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

manner in which the Constitution has subjected the ordinance making

power to legislative authority. This, the Constitution achieves by the

requirements

of Article 213. The first requirement defines the condition

subject to which an ordinance can be made. The second set of

requirements makes it mandatory that an ordinance has to be placed

before the House

of the legislature. The third requirement specifies the

tenure

of an ordinance and empowers the legislature to shorten the

duration

on the formulation of a legislative disapproval.

Once the

legislature has reconvened after the promulgation

of an ordinance, the

Constitution presupposes that it is for the legislative body in exercise

of

A

B

c

its power to enact law,.to determine the need for the provisions which D

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.

43. 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

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

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?

E

F

G

H

222

A

B

c

D

E

F

G

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

44. 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

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.

J.2 DCWadhwa

45. The judgment of the Constitution Bench in DC Wadhwa v.

State of Bihar

32

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:

"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

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.

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

B

c

to continue the provisions of an ordinance in force by adopting the D

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 :

"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

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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

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

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

46. 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 Lexicon

34

defines the

expression "ceas1:" to mean "discontinue or put an end to". Justice C

K

Thakker's Encyclopaedic Law Lexicon

35

defines the word "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 Dictionary

36

•

47. In a judgment of a Division Bench of the Andhra Pradesh

High Court in Mahanat Narayan Dessjivaru v. State of Andhra

37

,

it

was held that once a scheme and a sanad were no longer operative, the

rights,

if any, accruing there from were extinguished. There was no

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

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

".

48. 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

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.

49.

The expression

"disapproval" is defined in P Ramanatha

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."

B

c

50. 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?

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

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

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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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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.

51. 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

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

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 :

H

40

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 A

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 B

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

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,

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

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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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

was so, rights and liabilities in respect

of claims filed under the ordinance

were held not to be extinguished despite repeal.

52. 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

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.

53.

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

G

H

(e) affect any investigation, legal proceeding or remedy in respect

of any such right, privilege, obligation, liability, penalty, forfeiture

or punishment as aforesaid''.

54.

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

a legislation results from a positive or affirmative act of the legislative

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[DR. D. Y. CHANDRACHUD, J.]

body based on its determination that the law

is no longer required. Repeal

takes place through legislation.An ordinance lapses ('ceases to operate')

when it has failed to obtain legislative approval

by being converted into a

duly enacted legislation.

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

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?

55. In

State of

Orissa v. Bhupendra Kumar Bose

41

, elections

to a municipality were set aside by the High Court on a defect in the

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

229

A

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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.

Windle

43

;

and Steavenson v.

Oliver

44

.

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

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

A Having adverted to these English decisions, the Constitution Bench held

thus:

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"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

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 :

"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

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

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.

56.

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 of Andhra 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

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 A

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 B

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 D

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 E

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

57. 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

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

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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

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

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

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

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

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

cannot

be accepted as reflecting the true constitutional position.

58. 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

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

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

B

c the power to promulgate as well as the conditions subsequent to

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 D

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.

59. 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

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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 of Article 352, a proclamation thus approved shall, unless

it is revoked, "cease to operate" on the expiration of a period of six

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

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".

60. 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

of Article 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.

61. Similarly, a presidential proclamation under Article 356( I )(b)

may declare that the powers of the legislature of the state shall be

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

proclamation under Article 356 shall continue in force even after the

cessation

of the proclamation until it is altered or repealed or amended

B

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.

62. Article 249 enables Parliament t6' legislate

on matters

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

c

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 D

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.

63. 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

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

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executive". In the earlier decision in State of Rajasthan v. Union of

India

47

,

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

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

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

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

"< t 977) 3 sec sn

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[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

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 :

"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

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.

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64.

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

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

President under Article 123, it

was observed that an ordinance could be

disapproved by a resolution

of

Parliament and would cease to operate

even before the prescribed period. However, under Article

0

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.

65. 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 Bombay

48

, Justice Faz!

Ali in the course

of his dissenting opinion noticed the use of these phrases

in the following observations:

"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

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

"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.

66. 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.

D

E

F

67. 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 G

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

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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

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,

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.

68.

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

[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.

69. The issue which confronts itself before the court is whether

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

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,

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

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.

70. 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)

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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

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

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

71. 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

[DR. D. Y. CHANDRACHUD, J.]

"Rule? I. Statement regarding Ordinances - ( 1) Whenever a Bill

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

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)

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.

72.

The Rules of

Procedure and Conduct of Business in the Bihar

Vidhan Sabha

51

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.

73. 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)

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

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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.

74.

The failure to place an ordinance before the legislature

constitutes a serious infraction

of a constitutional obligation which the

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

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 Bihar

52

this

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)

" (2000) s sec 655

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[DR. D. Y. CHANDRACHUD, J.]

75.

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

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

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

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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

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

76. The judgment of the Constitution Bench in DC Wadhwa was

delivered on

20 December 1986. The Constitution Bench made it clear,

as a matter

of constitutional principle, that the executive cannot subvert

the democratic process by resorting to a subterfuge

of re-promulgating

ordinances. The Constitution Bench held that it would be a colorable

exercise

of power for government to ignore the legislature and to re­

promulgate ordinances.

Perhaps there is justification in the critique of

the judgment that the Constitution Bench ultimately left the matter (having

invalidated one

of the Bihar ordinances which still held the field) to an

expression

of hope which read thus :

"we hope and trust that such practice shall not be continued in the

future and that whenever an ordinance is made and the government

wishes to continue the provisions

of the ordinance in force after

the reassembling

of the legislature, a Bill will be brought before

the legislature for enacting those provisions into an act. There

must not be Ordinance-Raj in the

country."

77. The Constitution Bench carved out an exception where an

ordinance may have to be re-promulgated by the Governor where it has

not been possible for Government to introduce and push through in the

legislature a Bill containing the same provisions as an ordinance because

of an excess of legislative business for a particular session. This

exception has been criticized on the ground that however pressing is the

existing legislative business, it lies in the discretion

of the government to

seek an extension

of the legislative session for converting an ordinance

into an enactment

of the legislature. Moreover, it has been questioned as

to whether a re-promoulgated ordinance would meet the basic

KRISHNA KUMAR ~; \GH & ANR. v. STATE OF BIHAR

[DR. D.

Y. CHANDRACHUD, J.]

constitutional requirement

of the existence of circumstances bearing upon

the satisfaction

of the Governor on the need to take immediate action.

Be that as it may, it is not the case of the

State of Bihar in the present

case that there was any reason or justification to continue with a chain

of ordinances nor is there any material before the court to indicate

exceptional circumstances involving a constitutional necessity.

78. The two learned judges (Justice

Sujata Manohar and Justice

Wadhwa) agreed in coming to the conclusion that the ordinances which

were issued after the first would amount to a fraud on constitutional

power. They however differed in regard to the validity

of the first

ordinance. Justice

Sujata Manohar held that all the ordinances formed a

part

of a chain of acts designed to nullify the scheme of Article 213. In

this view, each of the ordinances took colour from one another,

notwithstanding some departures in the scheme

of the fourth and

subsequent ordinances. The entire exercise was held to be a fraud on

the power conferred by Article 213 since the executive had no intention

247

A

B

c

of placing any of the ordinances before the legislature. Justice Wadhwa D

on the other hand took the view that

the effect of the first ordinance was

of an enduring nature and held that what the first ordinance ordained

was accomplished and its effect was irreversible. In this view, the

ordinance was like a temporary law which had accomplished its purpose.

Justice Wadhwa held that once the property has vested in the state

there had to be an express legislation taking away vested rights. The

conferment

of rights on the employees was held to be of an enduring

character which could not be taken away merely because the ordinance,

like a temporary statute ceased to operate. 79 We

have already

adduced reasons earlier for overruling the enduring rights theory based

on the analogy

ofa temporary statute. Moreover as we have indicated,

it would not be correct to assert that these enduring rights could be set at

naught only by an act

of the legislature enacted with retrospective effect.

The basic infirmity is that none

of the ordinances, including the first, was

laid

before the legislature. There was a fundamental breach of a

mandatory constitutional requirement. All the ordinances formed a part

of one composite scheme by which the Governor ofBihar promulgated

and re-promulgated ordinances. That chain or link commenced from the

promulgation

of the first ordinance. Hence, in the very nature of things it

would not be possible to segregate the first ordinance since it forms an

intrinsic part

of a chain or link of ordinances each of which and which

E

F

G

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248 SUPREME COURT REPORTS (2017] 5 S.C.R.

A together constitute a fraud on constitutional power.

B

c

D

E

F

N Conclusion

80. In summation, the conclusions in this Judgment are as follows:

(i) The power which has been conferred upon the President under

Article 123 and the Governor under Article 213 is legislative in character.

The power is conditional in nature: it can be exercised only when the

legislature is not in session and subject to the satisfaction

of the

President

or, as the case may be, of the Governor that circumstances exist which

render it necessary to take immediate action;

(ii)

An Ordinance which is promulgated under Article 123 or Article

213 has the same force and effect as a law enacted by the legislature

but it must (i)

be laid before the legislature; and (ii) it will cease to operate

six weeks after the legislature has reassembled or, even earlier

if a

resolution disapproving it is passed. Moreover, an Ordinance may also

be withdrawn;

(iii) The constitutional fiction, attributing to an Ordinance the same

force and effect as a law enacted by the legislature comes into being

if

the Ordinance has been validly promulgated and complies with the

requirements

of Articles 123 and 213;

(iv) The Ordinance making power does not constitute the

President

or the Governor into a parallel source of law making or an independent

legislative authority;

(v) Consistent with the principle oflegislative supremacy, the power

to promulgate ordinances is subject to legislative control. The President

or, as the case may be, the Governor acts on the aid and advice of the

Council of Ministers which owes collective responsibility to the

legislature;

(vi)

The requirement oflaying an Ordinance before

Parliament or

the state legislature is a mandatory constitutional obligation cast upon

the government. Laying of the ordinance before the legislature is

G mandatory because the legislature has to determine: (a) The need for,

validity

of and expediency to promulgate an ordinance; (b) Whether the

Ordinance ought to

be approved or disapproved; (c) Whether an Act

incorporating the provisions

of the ordinance should be enacted (with or

without amendments);

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAk 249

[DR. D.

Y. CHANDRACHUD, J.]

(vii) The

failure to comply with the requirement of laying an A

ordinance before the legislature is a serious constitutional infraction and

abuse

of the constitutional process;

(viii) Re-promulgation

of ordinances is a fraud on the Constitution

and a sub-version

of democratic legislative processes, as laid down in

the judgment

of the Constitution Bench in DC Wadhwa;

(ix) Article 213(2)(a) provides that an ordinance promulgated under

that article shall

"cease to operate" six weeks after the reassembling

of the legislature or even earlier, if a resolution disapproving it is passed

in the legislature. The Constitution has used different expressions such

as "repeal" (Articles 252, 254, 357, 372 and 395); "void" (Articles 13,

245, 255 and 276); "cease to have effect" (Articles 358 and 372); and

"cease to operate" (Articles 123, 213 and 352). Each of these expressions

has a distinct connotation. The expression "cease to operate" in Articles

123 and 213 does not mean that upon the expiry of a period of six weeks

of the reassembling of the legislature or upon a resolution of disapproval

being passed, the ordinance is rendered

void ab initio. Both Articles

123 and 213 contain a distinct provision setting out the circumstances in

which an ordinance shall be void. An ordinance is void in a situation

where it makes a provision which Parliament would not be competent to

enact (Article 123(3)) or which makes a provision which would not be a

valid

if enacted in an act of the legislature of the state assented to by the

Governor (Article 213(3)). The framers having used the expressions

"cease to operate" and "void" separately in the same provision, they

cannot convey the same meaning;

(x) The theory

of enduring rights which has been laid down in the

judgment in

Bhupendra Kumar Bose and followed in T Venkata

Reddy by the Constitution Bench is based on the analogy of a temporary

enactment. There is a basic difference between an ordinance and a

temporary enactment. These decisions

of the Constitution Bench which

have accepted the notion

of enduring rights which will survive an

ordinance which has ceased to operate do not lay down the correct

position. The judgments are also no longer good law in view

of the

decision in

S R Bommai;

(xi) No express provision has been made in Article 123 and Article

213 for saving

of rights, privileges, obligations and liabilities which have

arisen under an ordinance which has ceased to operate.

Such provisions

B

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G

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SUPREME COURT REPORTS [20171 5 S.C.R.

are however specifically contained in other aiiicles of the Constitution

such as Articles 249(3), 250(2), 357(2), 358 and 359(1A). This is,

however, not conclusive and the issue is essentially one

of construction;

of giving content to the 'force and effect' clause while prescribing

legislative supremacy and the rule

oflaw;

(xii) The question as to whether rights, privileges, obligations and

liabilities would survive an

Ordinance which has ceased to operate must

be determined as a matter

of construction. The appropriate test to be

applied is the test

of public interest and constitutional necessity. This

would include the issue as to whether the consequences which have

taken place under the

Ordinance have assumed an irreversible character.

In a suitable case, it would

be open to the court to mould the relief; and

(xiii) The satisfaction of the President under Article 123 and of

the Governor under Article 213 is not immune from judicial review

particularly after the amendment brought about

by the forty-fourth

amendment to the Constitution by the deletion

of clause 4 in both the

articles. The test is whether the satisfaction is based on some relevant

material. The court in the exercise

ofits power of judicial review will not

determine the sufficiency

or adequacy of the material. The court will

scrutinise whether the satisfaction in a particular case constitutes a fraud

on

power or was actuated by an oblique motive. Judicial review in other

words would enquire into whether there was no satisfaction at all.

81. We hold and declare that every one

of the ordinances at issue

commencing with

Ordinance 32 of 1989 and ending with the last of the

ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional

power. These ordinances which were never

placed before the state

legislature and were re-promulgated in violation

of the bindingjudgment

of this Court in D C Wadhwa are bereft of any legal effects and

consequences. The ordinances do not create any rights or confer the

status

of government employees. However, it would be necessary for

us to mould the

relief (which we do) by declaring that no recoveries

shall be made from any

of the employees of the salaries which have

been paid during the tenure

of the ordinances in pursuance of the directions

contained in the judgment

of the High Court.

82. The reference

is answered in these terms.

83. We acknowledge and value the able assistance rendered by

learned counsel who appeared before the court :

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 251

Shri Salman Khurshid, Shri Rakesh Dwivedi, Shri Amarendra Saran, A

Shri Mukesh Giri, Shri CU Singh, senior advocates and Shri Ranjit Kumar,

Solicitor General. Their industry and research have provided us valuable

inputs.

MADAN B.

LOKUR, J.

1. Having carefully read the erudite judgment prepared by brother B

Chandrachud, I regret my inability to agree that laying an Ordinance

promulgated

by the Governor of a

State before the State Legislature is

mandatory under Article 213(2)

of the Constitution and the failure to lay

an Ordinance before the

State Legislature results in the Ordinance not

having the force and effect as a law enacted and would

be of no

consequence whatsoever.

In my opinion, it is not mandatory under Article

213(2)

of the Constitution to lay an Ordinance before the Legislative

Assembly

of the

State Legislature, nor would the failure to do so result

in the Ordinance not having the force and effect as an enacted law or

being

of no consequence whatsoever.

2. Further, in my opinion, an Ordinance cannot create an enduring

or irreversible right in a citizen. Consequently and with respect, a contrary

view expressed by this Court in

State of Orissa v. Bltupendra Kumar

Bose

1

and T. Venkata Reddy v. State of Andltra Pradeslt

2

requires to.

be overruled. In overruling these decisions, I agree with brother

Chandrachud though my reasons are different.

3. As far as the re-promulgation

of an Ordinance is concerned, I

am

of opinion that the re-promulgation of an Ordinance by the Governor

of a

State is not per se a fraud on the Constitution. There could be

exigencies requiring the re-promulgation

of an Ordinance. However,

re-promulgation

of an Ordinance ought not to be a mechanical exercise

and a responsibility rests on the Governor to be satisfied that

"circumstances exist which render it necessary for him to take immediate

action" for promulgating or re-promulgating an Ordinance.

4. Finally, I am

of the view that in the absence of any challenge by

the employees to the first three Ordinances promulgated by the Governor

of the

State ofBihar, their validity must be assumed. Consequently, even

though these three Ordinances may have been repealed, the employees

would be entitled to the benefits under them till they ceased to operate

' 1962 Supp (2) SCR

380 -Bench of 5 Judges

2

(

1985) 3 SCC

198-Bench of 5 Judges

c

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

A and the benefits obtained

by the employees under these three

Ordinances

are justified. However, these three Ordinances do not confer any enduring

or irreversible right or benefits on the employees. The promulgation

of

the fourth and subsequent

Ordinances has not been adequately justified

by the State of Bihar in spite of a specific challenge by the employees

B

and therefore they were rightly struck down by the High Court. Therefore,

I partly agree with brother Chandrachud on the issue

of the validity of

the

Ordinances.

5. The facts relating to these appeals have been detailed by brother

Chandrachud and it is not necessary to repeat them. All that need be

said is that in terms

of Article 154 of the Constitution the executive

C power

of the

State shall be vested in the Governor of the State and shall

be exercised by him either directly or through officers subordinate to

him in accordance with the Constitution. In terms

of Article 168 of the

Constitution every

State shall have a Legislature which consists of the

Governor

of the State and in the case of some States, two Houses and in

D the other States, one House. Where there are two Houses

of the

Legislature, one shall be known as the Legislative Council and the other

shall be known as the Legislative Assembly.

We are concerned with the

State

ofBihar which has

two Houses of the Legislature.

E

Promulgation of an Ordinance

6.Article 213 of the Constitution provides that when the Governor

of the State is satisfied that "circumstances exist which render it

necessary for him to take immediate action, he may promulgate such

Ordinances as the circumstances appear to him to require." However,

this is subject to the exception that the Governor cannot promulgate an

F Ordinance when both Houses of the Legislature are in session. An

Ordinance is promulgated by the Governor of a State on the aid and

advice

of his Council of Ministers and is in exercise of his legislative

power.

An

Ordinance has the "same force and effect as an Act of the

Legislature

of the State assented to by the

Governor" in terms of Article

213(2)

of the Constitution. Clause (a) of Article 213(2) of the Constitution

G provides that every such

Ordinance "shall be laid before the Legislative

Assembly

of the

State, or where there is a Legislative Council in the

State, before both the Houses, and shall cease to operate at the 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

H Legislative Assembly and agreed to

by the Legislative Council, if any,

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 253

[MADAN

B.

LOKUR, J.]

upon the passing of the resolution or, as the case may be, on the resolution · A

being agreed to

by the

Council." Clause (b) of Article 213(2) of the

Constitution provides that an Ordinance may be withdrawn at any time

by the Governor. There is an Explanation to Article 213(2) of the

Constitution but we are not concernedwith it.

7. There is no dispute in these appeals that the Governor ofBihar B

promulgated as many as eight Ordinances (one after another and on the

same subject) in exercise

of his legislative power under Article 213(1)

of the Constitution. None of these Ordinances was laid before the

Legislative Assembly or the Legislative Council.

8.

It is important to stress, right at the threshold, that the c

promulgation of an Ordinance is a legislative exercise and an Ordinance

is promulgated by the Governor

of a

State only on the aid and advice of

the Executive; nevertheless, the Governor must be satisfied that

circumstances exist which render it necessary for him to take immediate

action. The State Legislature has no role in promulgating an Ordinance

or actions taken under an Ordinance -that is within the domain

of the D

Executive. The

State Legislature keeps a check on the exercise of power

by the Executive through the Governor. This is by a Resolution

disapproving an Ordinance. The State Legislature is expected to ensure

thatthe separation of powers between the Executive and the Legislature

is maintained and is also expected to ensure that the Executive does not E

transgress the constitutional boundary and encroach on t?e powers of

the Legislature while requiring the Governor to promulgate an Ordinance.

9. Article 213 of the Constitution does not require the Legislature

to approve an Ordinance -Article 213(2)

of the Constitution refers only

to a Resolution disapproving an Ordinance.

If an Ordinance is disapproved

by a Resolution

of the

State Legislature, it ceases to operate as provided

in

Article 2 l 3(2)(a) of the Constitution. If an Ordinance is not

disapproved, it does not lead to any conclusion that it has been approved

-it only means that the Ordinance has not been disapproved by the State Legislature, nothing more and nothing less.

10. The concept of disapproval of an Ordinance by a Resolution

as mentioned inArticle 213(2)(a)

of the Constitution may be contrasted

with Article 352(4)

of the Constitution where a positive act of approval

of a

Proclamation issued under Article 352( 1) of the Constitution is

necessary. Similarly, a positive act of approval of a Proclamation issued

F

G

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

under Article 356(1)

of the Constitution is necessary under Article 356(3)

of the Constitution. Attention may also be drawn to a

Proclamation issued

under Article 360 of the Constitution which requires approval under

Article 360(2) of the Constitution. There is therefore a conscious

distinction made

in the Constitution between disapproval of an Ordinance

(for example) and approval

ofa Proclamation (for example) and this

distinction cannot be glossed over.

It is for this reason that I am of the

view that only disapproval

of an Ordinance is postulated by Article

213(2)(a)

of the Constitution and approval of an Ordinance is not

postulated

by Article 213(2)(a) of the Constitution.

11. The expression of disapproval of an Ordinance could be at the

instance

of any one Member of the Legislative Assembly in view of

Rule

140 of the Rules of Procedure and Conduct of Business in the

Bihar Vidhan Sabha.

3

If the State Legislature disapproves an Ordinance

by a Resolution, it ceases to operate.

One of the important issues before

us is whether after an Ordinance ceases to operate, do concluded actions

and transactions under that Ordinance survive.

After the promulgation of an Ordinance

12. It is in this background, after the promulgation of an Ordinance

by the Governor

of a State at the instance of the Executive, that the

Constitution visualizes three possible scenarios.

(a)

Firstly, despite the seemingly mandatory language of Article

213(2)(a)

of the Constitution, the Executive may not lay an Ordinance

before the Legislative Assembly

of the State Legislature. The question

is: Is it really mandatory for an Ordinance to be laid before the Legislative

Assembly and what is the consequence

ifit is not so laid?

(b) Secondly, the Executive may, in view of the provisions of

Article 2 l 3(2)(b) of the Constitution advise the Governor of the

State to

withdraw an Ordinance at any time, that is, before reassembly

of the

State Legislature

or even after reassembly. In this scenario, is it still

mandatory that the Ordinance be laid before the Legislative Assembly?

3

140. Discussion on Governor's Ordinance:- As soon as possible after the Governor

has promulgated an Ordinance under clause

(I) of Article 213 .of the Constitution,

printed copies

of such

Ordinance shall be made available by the Secretary to the

members

of the Assembly. Within six weeks from the re-assembly of the Assembly,

any member

may, after giving three clear days' notice to the Secretary, move a resolution

approving the Ordinance; and

if such resolution

is..rassed, it shall be forwarded to the

H other House with a message asking for its concurrence.

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 255

[MADAN

B.

LOKUR, J.]

(c)

Thirdly, the Executive may, in accordance with Article A

213(2)(a)

of the Constitution lay an Ordinance before the Legislative

Assembly

of the

State Legislature. What could happen thereafter?

I propose to deal with each possible scenario.

First scenario

B

13,

As far as the first scenario is concerned, namely, the

Executive not laying an Ordinance before the Legislative Assembly,

brother Chandrachud has taken the view that on a textual reading

of

Article 213(2)(a) of the Constitution an Ordinance promulgated by the

Governor shall mandatorily be laid before the

State Legislature. With

respect, I am unable to subscribe to this view. C

14. Article 213(2)( a) of the Constitution provides that an Ordinance ceases

to operate at the expiration

of six weeks of reassembly of the

State

Legislature or if before the expiration of that period a Resolution

disapproving it is passed by the State Legislature. An Ordinance ceasing

to operate at the expiration

of six weeks of reassembly .of the

State D

Legislature is not related or referable to laying the Ordinance before the

State Legislature. Therefore, whether an Ordinance is laid before the

State Legislature or not, the provisions of Article 213(2)(a) of the

Constitution kick in and the Ordinance will cease to operate at the

expiration

of six weeks of reassembly of the

State Legislature. On a E

textual interpretation

of Article 2 l 3(2)(a) of the

Constitution, not laying

an Ordinance before the Legislative Assembly has only one consequence,

which is that the Ordinance will cease to operate at the expiration

of six

weeks

of reassembly of the

State Legislature. While I agree that not

laying an Ordinance before the State Legislature on its reassembly would

be extremely unfortunate, morally and ethically, but that does not make F

it mandatory for the Ordinance to

be so laid.

15. In

this context, does the

Constitution provide for any

consequence other than the Ordinance ceasing to operate? In my opinion,

the answer is No.

!fan Ordinance is not laid before the

State Legislature

it does not become invalid or-void. However, a view has been expressed G

that

if an Ordinance is not at all laid before the Legislative Assembly

then it cannot have the same force and effect as a law enacted

and

would be of no consequence whatsoever. In this view, the force and

effect

of an Ordinance as a law is dependent on the happening of a

future uncertain event, that is, laying the Ordinance before the Legislative H

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

A Assembly. I am afraid the force and effect of a law cannot depend on

an uncertainty and the occurrence

ofa future event, unless the law itself

so provides. An Ordinance, on its promulgation either has the force and

effect

of a law or it does not -there is no half-way house dependent

upon what steps the Executive might or might not take under Article

B

c

213(2) of the Constitution.

16. Article 213(2) of the Constitution is, in a sense, disjunctive -the first

part declaring that an Ordinance promulgated under this Article shall

liave the same force and effect as an Act of the Legislature of the State

assented to by the Governor and the second part requiring laying the

Ordinance before the Legislative Assembly.

It is not possible for me to

read the first part as being conditional or dependent on the performance

of the second part, that is to say that ifthe Ordinance is not so laid, it will

not have the force and effect

of a law. There is nothing in Article 213(2)

of the Constitution to suggest this construction.

17.

If an Ordinance not laid before the Legislative Assembly does

D not have the force and effect of a law, then it must necessarily_ be void

ab initio or would it be void from the date on which it is required to be

laid before the Legislative Assembly, or some other date? This is not at

all clear and the view that the Ordinance would be

of no consequence

E

whatsoever or void introduces yet another uncertainty -when should

the Ordinance be laid before the Legislative

Assembly-immediately on

its reassembly or on a later date and from which date does it become

void?

18. Article 213(3)

of the Constitution provides for the only

contingency when an

Ordinance is void. This provision does not suggest

F that an Ordinance would be void

if it is not placed before the State

Legislature. The framers

of our Constitution were quite conscious of

and recognized the distinction between an

Ordinance that is void (under

Article 213(3)

of the Constitution) and an Ordinance that ceases to

operate (under Article 213(2)

of the Constitution). !fan Ordinance is

void, then any action taken under a void Ordinance would also be void.

G But

if an Ordinance ceases to operate, any action taken under the

. Ordinance would be valid during the currency of the Ordinance since it

has the force and effect

of a law. Clear! y, therefore, the distinction

between Clause (2) and Clause (3)

of Article 213 of the Constitution is

real and recognizable as also the distinction between an Ordinance that

H is void and an Ordinance that ceases to operate. A contrary view blurs

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAP. 257

[MADAN B. LOKUR, J.]

that distinction and effectively converts an Ordinance otherwise valid A

into a void Ordinance. I

am afraid this is not postulated by Article 213 of

the Constitution.

19. For the above reasons, both textual and otherwise, I hold that

on a reading of Article 213(2) of the Constitution it is not

mandatory that

an Ordinance should be laid before the Legislative Assembly of the State B

Legislature. While concluding that the Constitution does not make it

mandatory

for the Executive to lay an Ordinance promulgated by the

Governor

of the State before the Legislative Assembly, I do share the

concern what this would

mean for our democracy in the long run; perhaps

the State Legislatures would need

to be more vigilant and proactive in C

keeping a check on the Executive riding roughshod over democratic

requirements

and exert their

constitution.al supremacy over the Executive.

20. What can a Member of the Legislative Assembly do if an

Ordinance

is not laid before the State Legislature-is he without recoarse'!

When an Ordinance

is promulgated it is printed in the Official Gazette

and therefore every legislator

is aware of its promulgation. As far as the D

State Legislature ofBihar

is concerned, under Rule

140 of the Rules of

Procedure and Conduct of Business in the Bihar Vidhan Sabha a printed

copy of the Ordinance is also required to be made available to all Members

of the Legislative Assembly by its Secretary. Therefore, on reassembly

of the Legislative Assembly, any Member may move a resolution for E

disapproving the Ordinance either

on the basis of the Official Gazette or

on the basis

of a printed copy of the Ordinance

made available by the

Secretary

of the Legislative Assembly. Consequently, even if the

Executive does not lay the Ordinance before

the State Legislature or if

the Secretary of the Legislative Assembly does not supply a printed

copy

of the Ordinance, a Member of the Legislative Assembly is not

helpless. Surely, his right

to move a Resolution for disapproving the

Ordinance cannot

be taken away by this subterfuge. This right of a

Member

of the Legislative Assembly cannot be made dependent on the

Executive laying the Ordinance before the State Legislature, nor can

this right be taken

away by the Executive by simply not laying the

Ordinance before the Legislative Assembly.

21. Therefore, even without making the laying of an Ordinance

before the State Legislature mandatory, the Constitution does provide

adequate checks and balances against a possible misuse

of power by

the Executive.

F

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

A Second scenario

22. As far as the second scenario is concerned, the Executive is

entitled to, in view

of the provisions of Article 213(2)(b) of the Constitution

advise the Governor

of the

State to withdraw an Ordinance at any time,

that is, before reassembly

of the

State Legislature or after its reassembly

B

but before it is laid before the Legislative Assembly. In either situation

(particularly in the latter situation) could it be said that laying the

Ordinance before the Legislative Assembly would still be mandatory? I

do not think so.

In such situations, no purpose would be served by laying

a withdrawn Ordinance before the State Legislature except perhaps

c

completing an empty formality.

Our Constitution has not been framed

for the sake

of completing empty formalities. This is an additional reason

for holding that there is no mandatory requirement that regardless

of the

circumstances, an Ordinance shall mandatorily be placed before the State

Legislature.

D 23. The reasons for withdrawal

of an Ordinance by the Governor

E

F

G

H

at the instance of the Executive, whether before or after reassembly of

the State Legislature are not relevant for the present discussion and it is

not necessary to go into them.

Third scenario

24. The third scenario is where the Executive, in accordance

with Article 213(2)(a)

of the Constitution lays an Ordinance before the

Legislative Assembly. The Ordinance could be 'ignored' and as a result

no one may move a Resolution for its disapproval. In that event, the

Ordinance would run its natural course and cease to operate at the

expiration

of six weeks of reassembly of the State Legislature.

25. However,

if a Resolution is moved for disapproval of the

Ordinance, the State Legislature may reject the Resolution and in that

event too, the Ordinance would run its natural course and cease to operate

at the expiration

of six weeks of reassembly of the State Legislature.

26. But

if a Resolution for disapproval of an Ordinance is accepted

and the Ordinance disapproved then it would cease to operate by virtue

of the provisions of Article 213(2)(a) of the Constitution on the Resolution

being passed by the Legislative Assembly and the Legislative Council

agreeing with it.

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 259

[MADAN

B.

LOKUR, J.]

27. In other words, several possibilities get thrown up when an A

Ordinance is laid before the State Legislature. Depending on the decision

of the State Legislature, an Ordinance might lapse by efflux of time and

cease to operate thereafter or it might earlier cease to operate

if a

Resolution is passed disapproving the Ordinance or it might

even be

replaced by a Bill. B

28. In fact, a situation

of replacing an Ordinance by a Bill did

arise in State of

Orissa v. Bhupendra Kumar Bose

4

read with

Bhupendra Kumar Bose v. State of Orissa.; In that case, the Orissa

Municipal Elections Validation Ordinance, 1959 (Orissa Ordinance No. I

of 1959) was promulgated by the Governor of Orissa on l 5

1

h January,

1959.

It is not clear whether the Ordinance was laid before the State C

Legislature or not or whether it was disapproved but in any event the

government

of the day sought to introduce in the Legislative Assembly

on

23m February, 1959 a Bill entitled "Orissa Municipal Election Validating

Bill, 1959". However, the Legislative Assembly refused to grant leave

for its introduction by a majority

of votes. This decision of the majority D

had no impact on the life

of the Ordinance which lapsed apparently on

I" April, 1959 six weeks after reassembly of the State Legislature.

29.

It is clear that when a Bill is introduced in the Legislative

Assembly, it becomes the property

of the Legislative Assembly and even

assuming an Ordinance is laid before the State Legislature and is

disapproved

by a Resolution, the disapproval has no impact on the Bill.

Conversely,

ifthe introduction of a Bill is declined by the Legislative

Assembly

or a Bill introduced in the Legislative Assembly is defeated, it

will have no

imgact on an Ordinance laid before the Legislative Assembly

which will continue to operate till it

is disapproved or it ceases to operate

at the expiration

of six weeks of reassembly of the Legislative Assembly.

Whether to pass

or not pass or enact or not enact a Bill into a law is

entirely for the Legislative Assembly to decide regardless

of the fate of

the Ordinance, as is obvious or is even otherwise evident from

Blmpendra Kumar Bose. Similarly, disapproval of an Ordinance is

entirely for the Legislative Assembly and the Legislative Council to decide

regardless

of the fate of any Bill introduced or sought to be introduced.

30. The sum and substance of this discussion is: (i) There is no

mandatory requirement that an Ordinance should be laid before the

4

1962 Supp (2)

SCR 380 -Bench of 5 Judges

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OJC No.12of1959 decided on 20.03.10959 by the Orissa High Court [MANU/OR/

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

A Legislative Assembly on its reassembly. (ii) The fate

of an Ordinance,

whether it is laid before the Legislative Assembly or not, is governed

entirely by the provisions

of Article 213(2)(a) of the Constitution and by

the Legislative Assembly. (iii) The limited control that the Executive has

over the fate

of an Ordinance after it is promulgated is that of its

B

c

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.

Effect of concluded transactions under an Ordinance

31. In the above background and in view of the facts before us,

the issue arising in the present appeals also relates to the effect

or

consequences or survival of actions and transactions concluded under

an Ordinance prior to its ceasing to operate by virtue

of its being

disapproved by the Legislative Assembly, or its otherwise ceasing to

operate or its withdrawal by the Governor

of the

State.

32. When an Ordinance is sought to be replaced by a Bill introduced

D in the State Legislature, it is entirely for the State Legislature to decide

whether actions taken under the Ordinance are saved or are not saved

or actions taken but not concluded will continue

or will not continue.

Being constitutionally transient,

an Ordinance cannot, unlike a temporary

Act, provide for any savings clause or contingency. Even

if an Ordinance

E hypothetically could provide for such a savings clause, the

State

Legislature may not accept it, since a Bill introduced by the government

of the day is the property of the State Legislature and it is entirely for the

State Legislature to decide the contents of the Act.

F

33. When an Ordinance ceases to operate, there is no doubt that

all actions in the pipeline on the date it ceases to operate will terminate.

This is simply because when the Ordinance ceases to operate, it also

ceases to have the same force and effect

as an Act assented to by the

Governor

of the State and therefore pipeline actions cannot continue

without any basis in

law. Quite naturally, all actions intended

to be

commenced on the basis

of the Ordinance cannot commence after the

G Ordinance has ceased to operate. Do actions

or transactions

co'l.cluded

before the Ordinance ceases to operate survive after the terminal date?

34. As far

as an Act enacted by a

State Legislature is concerned,

there

is no difficulty in appreciating the consequence ofits repeal. Section

6

of the General Clauses Act, 1897 is quite explicit on the effect of the

H

·repeal of an Act passed by a Legislature.

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 261

[MADAN B. LOKUR, J.]

35. In so far as a temporary Act is concerned, actions taken during A

its life but not concluded before it terminates (pipeline transadions) will

not continue thereafter since those actions and transactions would not

be supported by any existing

law. However, to tide over any difficulty

that

might be caused in such an eventuality, a temporary Act could provide

for the continuance of such actions and transactions. The reason for this

B

is that a temporary Act is enacted by the Legislature and it certainly has

the power to cater to such eventualities. Therefore, ifthere is a permissive

provision to the contrary, a pipeline transaction could survive the life

of a

temporary

Act. Such an eventuality specifically came up for consideration

.

'

before a Constitution Bench of this Court in S. Krishnan v. State of

Madras.

6

In that case, the Preventive Detention Act, 195.0 (a temporary C

Act that would cease

to have effect on l ''April, 1951 except as regards

things done or omitted

to be done before that date) was amended by the

Preventive Detention (Amendment)Act,

1951. The period of preventive

d_etention of detenus (such as the petitioners therein who were alreadi

under detention) was extended from one year to two years by extending

the life

of the

Preventive Detention Act, 1950 till I'' April, 1952. D

36. One of the questions that arose for the consideration of this

Court

in that case was whether the preventive detention of a person,

detained for example

on

21'' February, 1951 (as in the case of some

petitioners) could continue beyond

31 ''March, 1951 (or l ''April, 1951)

by virtue

of the Amendment Act when the temporary Act under which

they were detained would have, but

for the Amendment Act, ceased to

operate on

l" April, 1951. This involved the interpretation and

constitutional validity

of Section 12 of the Amendment Act which reads

as follows:

"For the avoidance of doubt it is hereby declared -

(a) every detention order in force at the commencement of the

Preventive Detention (Amendment) Act, 1951, shall continue

in

force and shall have effect as if it had been made under this Act

as amended by the Preventive Detention (Amendment) Act, 1951;

E

F

and G

(b) nothing contained in sub-section (3) of Section 1, or sub-section

(1)

of Section 12 ofthisAct as originally enacted shall be deemed

to affect the validity or duration of any such

order."

'(1951) SCR 621-Bench of5 Judges H

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

37. Answering the question in the affirmative, Justice Patanjali

Sastri (with Chief Justice Harilal Kania concurring) took the view that

because

of the Amendment Act the period for continuing the preventive

detention could be extended and the continued preventive detention

beyond

31 '' March, 1951 was valid. It was said:

" ...... although the new Act does not in express terms prescribe

in a separate provision any maximum period as such for which

any person may in any class or classes

of cases be detained, it

fixes, by extending the duration

of the old Act till the 1st April,

1952, an overall time limit beyond which preventive detention under

the Act cannot be continued.

The general rule in regard to a

temporary statute is that, in the absence of special provision

to the contrary, proceedings which are being taken against

the person under it will ipso facto terminate as soon as the

statute expires (Craies on Statutes,

4'

11

Edition, p. 347).

Preventive detention which would, but for the Act

authorizing it, be a continuing wrong, cannot, therefore, be

continued beyond the expiry of the Act itself. The new Act

thus in substance prescribes a maximum period

of detention under

it by providing that it shall cease to have effect on a specified date." [Emphasis supplied].

38. Justice Mahajan (with Justice S.R. Das concurring) also took

a definitive view that nothing further could be done under a temporary

Act after it expires.

It was held as follows:

"It may be pointed out that Parliament may well have thought that

it was unnecessary to fix any maximum period

of detention in the

new statute which was

of a temporary nature and whose own

tenure

oflife was limited to one year.

Such temporary statutes

cease to have any effect after they expire, they automatically

come to an end at the expiry of the period for which they

have been enacted and nothing further can be done under

them. The detention of the petitioners therefore is bound to come

to an end automatically with the life

of the statute and in these

circumstances Parliament may well have thought that it would be

wholly unnecessary to legislate and provide a maximum period

of

detention for those detained under this

law." [Emphasis supplied].

39. Thereafter, it was held that since the Amendment Act was

H valid, the petitioners were not entitled to release merely on the ground

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 263

[MADAN B. LOKUR, J.)

that the period

of one year mentioned in the

Preventive Detention Act, A

1950 had expired.

40. Justice Vivian Bose disagreed with the majority view and held

that the expiry

of the temporary Act would not result in the preventive

detentions coming to an end. The learned Judge held:

" .... I cannot agree that these detentions would come to an end B

with the expiry

of the Act. The rule in the case of temporary Acts

is

that-

"as a general rule, and unless it contains some special

provision

to the contrary, after a temporary Act has expired

no proceedings can be taken upon it, and it ceases to have any C

further effect. Therefore, offences committed against

temporary Acts must be prosecuted and punished before the

Act

expires." (Craies on Statute Law,4

1

h edition, p. 347).

But transactions which are concluded and completed before the

Act expires continue in being despite the expiry. See Crait:s on D

Statute Law, page 348, and 31 Halsbury's Laws of England

(Hailsham Edition), page 513. I take this to mean that

if a man is

tried for an offence created by a temporary Act and is found

guilty and sentenced to, say, five years' imprisonment, he would

have to serve his term even

if the Act were to expire the next E

day. In my opinion, the position is the same in the case

of

detentions. A man, who is arrested under a temporary

detention Act and validly ordered to be detained for a

particular period, would not be entitled to claim release

before his time just because the Act expired

earlier."

[Emphasis supplied). F

41. It is, therefore, evident that the view

of a majority of this

Court was that nothing done

would survive the termination of the

temporary Act, unless there

is a provision or savings

clause to the contrary

or unless the life of the temporary Act is statutorily extended. Does this

conclusion apply to an Ordinance as well?

It must be remembered that G

an Ordinance has

"the same force and effect as an Act of the Legislature

of the State assented to by the Governor" [Art. 213(2) of the

Constitution] but is not an Act of the Legislature -it is not even a

temporary Act

of the Legislature.

H

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

42. This question came up for consideration in Bhupendra Kumar

Bose

and while deciding the issue, this Court referred to three English

decisions -

Warren v. Windle

1

,

Steavenson v.

Oliver and Wicks v.

Director of Public Prosecutions

9

•

43. In Warren the decision of the Comi was that where a statute

professes to repeal absolutely a prior law, and substitutes other provisions

on the same subject, which are limited to continue only till a certain time,

the prior law does not revive after the repealing statute is spent, unless

the intention

of the Legislature to that effect is expressed. In.that context,

it was stated by Lord Ellenborough,

CJ. that

"a law, though temporary

in some

of its provisions, may have a permanent operation in other

respects. The stat. 26 Geo. 3,

c.

108, professes to repeal the statute of

19 Geo. 2, c. 3 5, absolutely, though its own provisions, which it substituted

in place

of it, were to be only

temporary."

44. In Steavenson the temporary statute expired on l ''August,

1826 but in.the meantime a person was given a right to practice as an

apothecary. The temporary statute did not contain any savings provision

and it was contended that the expiration

of the temporary statute would

bring to

an end all the rights and liabilities created by it. On these broad

facts, it was observed by one

of the learned judges (Parke, B.) that the

construction

of the statute would be the determining factor. It was held:

"Then comes the question, whether the privilege of practising given by

that stat. 6 Geo.4, referred to in the replication, is one which continues

notwithstanding the expiration

of that statute. That depends on the

construction of the temporary enactment. There is a difference

between temporary statutes and statutes which are repealed; the latter

(except so far as they relate to transactions already completed under

them) become as

if they had never existed; but with respect to the former,

the extent

of the restrictions imposed, and the duration of the provisions,

are matters

of construction. We must therefore look at this act, and

see whether the restriction in the ll'h clause, that the provisions

-of the statute were only to last for a limited time, is applicable to

this privilege. It seems to me that the meaning of the legislature was,

that all assistant-surgeons, who were such before the l ''of August, 1826,

should be entitled to the same privileges

of practicing as apothecaries, &

c., as if they had been in actual practice as such on the

l" of August,

7

(1803) 3 East 205; 102 E.R (KB) 578

8

151E.R.1024

'(1947] AC 362

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 265

[MADAN

B.

LOKUR, J.]

1815, and that their privilege as such was ofan executory nature, capable A

of being carried into effect after the l'' of August, 1826. " [Emphasis

supplied].

45.

In Wicks the question framed was: Is a man entitled to be

acquitted when he is proved to have broken a Defence Regulation at a

time when that regulation was

in operation, because his trial and conviction

take place after the regulation has expired? While answering this question,

it was observed that the question is a pure question

of the interpretation

of sub-section 3 of Section 11 of the Emergency

Powers (Defence)

Act, 1939.

It was then held that:

B

"Section 11 begins with the words "Subject to the provisions of

this section,'' and those introductory words are enough to warn C

anybody that the provision following immediately is not absolute,

but is going ·to be qualified in some way by what follows. It is

therefore not the case that, at the date chosen, the Act

expires in every sense; there is a qualification. Without

discussing whether the intermediate words are qualifications, sub-D

s. 3, in my opinion, is quite plainly a qualification. It begins with

the phrase

'The expiry of this

Act" - a noun which corresponds

with the verb "expire" -"The expiry of this Act shall not affect

the operation thereof as respects things previously done

or omitted to be done."

Learned counsel for the appellants have therefore been driven to

argue ingeniously, but admit candidly, that the contention they are

putting forward is, that the phrase "things previously done" does

not cover offences previously committed. I think that view cannot

be correct.

It is clear that Parliament did not intend sub-s. 3

to expire with the rest of the Act, and that its presence in the

statute is a provision which preserves the right to prosecute after

the date

of

expiry." [Emphasis supplied].

46. In all three cases, on a construction

of the temporary

st1:tute,

E

F

it was held that its provisions would not come to an end on its expiry.

This Court, on a consideration of the matter acknowledged that G

proposition and accepted the view taken by Patanjali Sastri J that on the

expiry

of a temporary Act, all actions and transactions terminate unless

the temporary Act provides otherwise. This is clear from the following

passage in

Blmpendra Kumar Bose:

"It is true that the provisions of Section 6 of the General Cleuses

Act in relation to the effect of repeal do not apply to a temporary H

266

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

Act. As observed by Patanjali Sastri, J., as he then was, in S.

Krishnan v. State of Madras the general rule in regard to a

temporary statute is that

in the absence of special provision to the

contrary, proceedings which are being taken against a person under

it will

ipso facto terminate as soon as the statute expires. That is

why the Legislature can and often does, avoid such an

anomalous consequence by enacting in the temporary

statute a saving provision, the effect of which is in some

respects similar to that of

S.6 of the General Clauses Act.

Incidentally, we ought to add that it may not be open to the

Ordinance making authority to adopt such a course because

of·

the obvious limitation imposed on the said authority by Art.

213(2)(a)." [Emphasis supplied]

47. However, this Court unfortunately overlooked the qualitative

distinction between a temporary Act (enacted by a Legislature) and an

Ordinance (promulgated by the Executive without the Legislature coming

into the picture at all) and equated them. By making that equation, this

Court with respect, mac\e.a fundamental and qualitative error and also,

with respect, erroneously relied upon the English decisions which relate

to

temporary statutes whose interpretation depended upon their

construction. As a result of this erroneous equation, this Court concluded

as follows:

"Therefore, in considering the effect of the expiration of a

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 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." [Emphasis

supplied].

48.

The English decisions concerned themselves with the

construction of temporary statutes and nothing else. Bhupendra Kumar

Bose

adopted for Ordinances the construction of temporary ·statutes

given by the English decisions and introduced an 'enduring rights' theory

into our jurisprudence.

49. But, what is more significant for the present purposes is that

though this Court accepted the view

of Patanjali Sastri J, an observation

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[MADAN B. LOKUR, J.]

was made at the end of the above quoted passage, that is, "Incidentally,

we ought to add that it may not be open to the Ordinance making

authority

to adopt such a course [of enacting a savings provision as in

a temporary statute]

because of the obvious limitation imposed on

the said authority by Article 213(2)(a)

[of the Constitution]." In view

of the above, I see some difficulty in incorporating the 'enduring rights'

theory into Ordinances.

267

A

B

50. This observation is significant for two reasons: Firstly, it

recognizes the obvious distinction between a temporary Act and an

Ordinance. Secondly it recognizes that while there may be life after the

expiry

of a temporary Act if a savings provision is incorporated therein,

Article 213(2)(a)

of the Constitution perhaps prohibits the incorporation C

ofa provision having an enduring effect in an Ordinance, by necessary

implication, with the result that there may not be any life in an Ordinance

after it ceases

to operate. In other words, neither any pending action or

transaction nor any concluded action or transaction can survive beyond

the date

of expiry of an Ordinance. I accept this proposition.because of D

the historical background relating to Ordinances.

Historical background

51. Section 88 of the Government oflndiaAct, 1935 gave power

to the Govemor of a Province to promulgate an Ordinance during the

recess

of the Legislature, ifhe is satisfied that circumstances exist which

render it necessary

to take immediate action.

52.

Section

90 of the Government India Act, 1935 gave an

extraordinary power to the Governor to enact a Govemor'sAct containing

such provisions as he considers necessary. Sub-section (3)

of Section

90 of the Government ofindiaAct, 1935 provides that a Governor's Act

shall have the same force and effect as an Act of the Provincial

Legislature assented to by the Governor. In other words, the Governor

had the power to promulgate an Ordinance (Section 88) and also enact

an Act (Section 90) in exercise of his legislative powers.

53.

The significance of having two separate provisions, Section

E

F

88 and Section

90 of the Government oflndiaAct, 1935 is that this Act G

also accepted a distinction between an Ordinance (having a limited life)

and an Act (having a 'permanent' life until repeal).

An Ordinance would

have a limited

shelf life in terms of Section 88 of the Government of

India Act, 1935 and it would cease to have any force and effect

~s an

Act

of the Provincial Legislature assented to by the Governor after the

H

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

A expiry

of its shelflife. If

the effect of an Ordinance promulgated by the

Governor were to survive after the expiry

ofits shelflife for an indefinite

period, there would have been

no occasion for enacting Section

90 of

the Government oflndia Act, 193 5 empowering the Governor to enact a

Governor's Act, since an appropriately drafted savings clause in an

B

c

Ordinance would serve the same purpose.

54. Appreciating this distinction, the ConstituentAssembly did away

with the extraordinary power

of enacting an Act conferred on the

. Governor under Section 90 of the Government of India Act, 1935.

However, it retained the impermanence

of an Ordinance as is clear

from a reading

of Article 213 of the Constitution. The

rete:ition of

impermanence is also clear from a reading of Article 213 of the

Constitution

in juxtaposition with some other provisions of the Constitution.

For example, Article 357(2)

of the Constitution (as originally framed)

provided that Parliament

or the President or any other authority may

exercise the power

of a State Legislature in making a law during

a

D Proclamation of an emergency issued under Article 356 of the

Constitution. However, that law shall cease to have effect on the

expiration

of one year after the Proclamation has ceased to operate "except as respects things done or omitted to be done before the expiration

E

of the said period ......

" By the Constitution (Forty-second Amendment)

Act,

197 6 the period of one year was deleted and such law shall continue

in force until altered or repealed or amended by a competent Legislature

or other authority even after the Proclamation issued under Article 356

of the Constitution has ceased to operate.

55. Similar provisions excepting things done or omitted to be done

(for a limited period

of six months) are found in Article 249 and Article

F

250 of the Constitution notwithstanding that a Resolution passed under

Article 249

of the Constitution has ceased to be in force (in the case of

Article 249 of the Constitution) or a Proclamation issued under Article

356

of the Constitution has ceased to operate (in the case of Article

250

of the Constitution).

G 56. Although Article 359(1-A)

of the Constitution was not a part

H

of the Constitution as originally framed, it too provides for saving things

done or omitted to be done before the law ceases to have effect. Brother

Chandrachud has sufficiently dealt with these and other similar provisions

of the Constitution and it not necessary to repeat the views expressed in

this regard.

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[MADAN

B.

LOKUR, J.]

57.

It is clear, therefore, that in the absence of a savings clause

Article 213 the Constitution does not attach any degree

of permanence

to actions or transactions pending or concluded during the currency

of

an Ordinance. It is apparently for this reason that it was observed in

Bhupendra Kumar Bose that in view of Article 213(2)(a) of the

Constitution an Ordinance cannot have a savings clause which extends

the life

of actions concluded during the currency of the Ordinance.

58. Therefore, there is a recognizable distinction between a

temporary Act which can provide for giving permanence to actions

concluded under the temporary Act and an Ordinance which ,cannot

constitutionally make such a provision. The reason for this obviously is

that a temporary Act is enacted by a Legislature while an Ordinance is

legislative action taken by the Executive.

If this distinction is not

appreciated, the difference between a temporary Act and an Ordinance

will get blurred. With respect, it appears to me that this

Court overlooked

this distinction in

Bhupendra Kumar Bose.

269

A

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c

59: Assuming there is no real distinction between a temporary D

Act and an Ordinance, I would then fall back on and respectfully agree

with the

view taken in S. Krishnan that for actions concluded under an

Ordinance to continue after its shelf life is over, a savings clause is

necessary. However, as observed in

Bhupendra Kumar Bose (and

with which observation I have no reason to disagree)

(Ill Ordinance

cannot provide for a savings clause that will operate beyond the life

of E

the Ordinance in view

of the provisions of Article 213(2)(a) of the

Constitution. Therefore, such an assumption would really be

of no

consequence.

In other words, whichever way the issue is considered, it

is clear from the Constitution that concluded actions and transactions

under an Ordinance do not continue beyond the life

of the Ordinance. F

60. However, it must be made clear that there is obviously no

constitutional restraint on the State Legislature in enacting a law in terms

of an Ordinance and thereby giving permanence to it.

Decision

in Venkata Reddy extending Bhupendra Kumar Bose

61.

In Venkata Reddy this

<,:ourt went a step further than

Bhupendra Kumar Bose and introduced the concept of irreversibility

of a completyd transaction as against the enduring character of a right

or liability laid Jo'Yn :.1 Bhu]A!n.'1;.: J(11mar Bose. The decision in

Venkata Reddy cealt with the v:'.!ic'it)·'Jfthc Andhra Pradesh Abolition

G

of Posts of Part-time ViUaJe Oftic~rs Ordinance, 1984 (Ordinance 1 of H

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

A 1984) promulgated by the Governor of Ar,dhra Pradesh. As the title of

the Ordinance suggests, it abolished the posts of part-time village officers

in the State

of Andhra

Pradesh and provision was made· for the

appointment

of village assistants.

One of the contentions raised in the

writ petitions challenging the validity

of the

Ordinance was: "The

B Ordinance having lapsed as the Legislature did not pass an Act in its

place,

the posts which were abolished should be deemed to have revived

and the issue

of successive ordinances the subsequent one replacing the

earlier one did not serve

any

purpose."

62. Rejecting this contention, this Court observed that if the

C requirements

of Article 213(2)(a) of the Constitution were not met, then

an

Ordinance "shall cease to operate" which "only means that it should

be treated

as being effective till it ceases td operate on the happening of

the events mentioned in clause (2) of

Article 213." In other words, since

an Ordinance shall have the same force· and effect as an Act of the

Legislature

of the State assented to by the Governor, it would be operate

D

as a law from the date of its promulgation till the date it ceases to operate.

E

F

G

H

This is quite obvious from a reading of Article 213(2) of the Constitution

which makes it abundantly clear that an

Ordinance has the 'same force

and effect'

as an Act of the State Legislature assented to by the Governor.

Consequently, merely because

an

Ordinance ceases to operate by efflux

of time or is disapproved under Article 213(2)(a) of the Constitution

does not void or efface

the actions and transactions concluded under it.

They are valid as long as the

Ordinance survives and "treated as being

effective till it ceases to operate".

63. Venkata Reddy however introduced an entirely new dimension

to the 'force

and effect' of an

Ordinance by extending the 'enduring

nature' theory

of Bhupendra Kumar Bose and introducing the

'irreversible effect'

theory. This was propounded in the following words:

"Even if the Ordinance is assumed to have ceased to operate

from a subsequent date by reason

of clause (2) of Article 213, the

effect

of Section 3 of the

Ordinance was irreversible except by

express legislation."

This Court took the view that the abolition of the posts of part-time

village officers in the State

of Andhra

Pradesh was a completed event

and therefore irreversible. Consequently there was

no question

of the

revival

of these posts or the petitioners continuing to hold these posts

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR

[MADAN B. LOKUR, J.]

any longer. Yet this Court held that the State Legislature was not powerless

to restore the

status quo ante by passing an express law operating

retrospectively to the said effect, subject to constitutional limitations.

64. I

am afraid it is difficult to accept this view. As it is, in view of

Article 213(2) of the Constitution an

Ordinance cannot, on its own terms,

create a right

or a liability of an enduring or irreversible nature otherwise

an extraordinary power would be conferred in the hands

of the Executive

and the Governor

of the

State which is surely not intended by our

Constitution. If such a power were intended to be conferred upon the

Executive and the Governor

of the State, it would be bringing in Section 90 of the Government of India Act, 1935 into our Constitution through

the back door.

65.

It seems to me that if a situation is irreversible, then it is

irreversible.

If a situation could be reversed through the enactment of a

retrospective law, then surely the

status quo ante can be restored on

271

A

B

c

the lapsing of an

Ordinance by efflux of time or its disapproval by the

Legislative Assembly. The same can be said

of an action or transaction D

of an enduring nature.

Undoubtedly, there are a few physical facts that

are

of an enduring nature or irreversible. For example, if an

Ordinance

were to provide for the imposition of the death penalty for a particular

offence and a person is tried and convicted and executed during the

currency

of the

Ordinance, then obviously an irreversible situation is

created and even

ifthe

Ordinance lapses by efflux of time or is void, the

status quo ante cannot be restored. So also in a case of demolition of

an ancient or heritage monument by an Ordinance. Such physically

irreversible actions are few and far between and are clearly

distinguishable from 'legally irreversible' actions.

66. There is a distinction between actions that are 'irreversible'

and actions that are reversible but a burden to implement. The situations

that arose in Bliupendra Kumar Bose and Venkata Reddy were not

physically irreversible though reversing them may have been burdensome.

If elections are set aside or posts are abolished, surely fresh elections

can be held and posts revived. In this context, it is worth recalling that

should the need arise, as in Nabam Rebia v. Deputy Speaker,

Arunaclial Pradesh Legislative Assembty'

0

this Court can always

restore the

status quo ante.

Bliupendra Kumar Bose and Venkata

Reddy

did not present any insurmountable situation.

IO (2016) 8 sec I -Bench of 5 Judges

E

F

G

H

272

A

B

c

D

E

F

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

67. Therefore, I am not in a position to incorporate the 'enduring

nature' or 'irreversible effect' theory in an Ordinance or even the public

interest

or constitutional necessity theory. In a given situation, the

State

Legislature is competent to pass an appropriate legislation keeping the

interests

of its constituents in mind. To this extent, both Bhupendra

Kumar Bose

and Venkata

Reddy are overruled.

Validity of the Ordinances

68. All the Ordinances have ceased to operate and nothing done

under them now survives after they have ceased to operate. The validity

of the first three

Ordinances was not challenged by the employees. There

is no material before us, one way or the other, to hold that the promulgation

of the first Ordinance and its re-promulgation by the second and third

Ordinances is invalid. Therefore, one can only assume that the first three

Ordinances are valid and the employees are entitled to the benefits under

them till the date these Ordinances ceased to operate and not beyond,

since these Ordinances were not replaced by an Act of the State

Legislature. I may mention, en passant, that it is not every re­

promulgation

of an

Ordinance that is prohibited by D.C. Wadhwa v.

State of Bihar.

11

There is no universal or blanket prohibition against re­

promulgation

of an

Ordinance, but it should not be a mechanical re­

promulgation and should be a very rare occurrence. Additionally, a

responsibility is cast on the Governor

of a

State by the Constitution to

promulgate or re-promulgate an Ordinance only ifhe is satisfied of the

existence

of circumstances rendering immediate action necessary. There

could be situations, though very rare, when re-promulgation is necessary,

but it is not necessary for me to delve into this issue insofar as the first

three

Ordinances are concerned.

69. Only the fourth and subsequent Ordinances were challenged

by the employees. As far as the fourth and subsequent Ordinances are

concerned, their promulgation and re-promulgation was not adequately

justified by the State ofBihar despite a specific challenge. Ther.: was no

G immediate action required to be taken necessitating the promulgation

of

the fourth

Ordinance and its re-promulgation by subsequent Ordinances.

I agree that the fourth Ordinance and subsequent Ordinances should be

struck down.

11

(1987) I SCC 378-Bench of 5 Judges

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 273

~cl A

70. In the absence of any challenge to the first three Ordinances

and since I have assumed that these three Ordinances are valid, the

benefit given to the employees (such as salary and perks) by these

Ordinances till they ceased to operate are justified. However, these

three Ordinances did not and could not grant any enduring or irreversible B

right or benefits

to the employees and the employees did not acquire any

enduring

or irreversible right or benefits under these three Ordinances.

Any right or benefits acquired by them terminated when the Ordinances

ceased to operate.

71. Despite a specific challenge made to the fourth and subsequent

Ordinances, the

State ofBihar has not justified their promulgation. They C

are therefore struck down.

72. The directions given by the High Court for payment

of salary

(if not already paid) and interest thereon need not be disturbed. The

reference is answered accordingly.

D

ORDER

T. S. THAKUR, CJI

1. I have had the advantage of reading the order proposed by my

esteemed brother Dr.

D.Y. Chandrachud, J. and the discordant note

struck by MadanB. Lokur,

J. to the same. The genesis of the controversy E

giving rise to this reference to a larger bench has been elaborately set

out in the order proposed by Chandrachud,

J. to which I can make no

useful addition especially when the narrative is both lucid and factually

accurate. All that I need mention is that the seminal question that

crises

for our consideration is whether seven successive repromulgations of F

The Bihar Non-Government Sanskrit Schools (Taking Over of

Management and Control) Ordinance, 1989 suffer from any illegality or

constitutional impropriety. The High Court of Patna has while dismissing

the writ petition filed by the appellants seeking relief on the basis

of the

said ordinances held that the repeated repromulgation

of the ordinances

was unconstitutional. Relying upon the Constitution Bench

decisi'Jn of G

this Court in D.C. Wadhwa and Ors. v. State qf Bihar and Ors. (1987)

·1 SCC 378, the High Court has dismissed the writ petition but protected

the appellants against any recovery

of salaries already paid to them.

2. The present appeal filed to assail the view taken by the High

Court was initially heard by a Two-Judge Bench

of this Court comprising H

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

A . Sujata V. Manohar and D.P. Wadhwa, JJ. who differed in their opinions

resulting in a reference

of the appeal to a bench of Three-Judges who

in-turn referred the same to a bench

of Five Judges. Since, however,

doubts were raised about the correctness

of the view expressed by this

Court

in two earlier Constitution Bench decisions in

State of Orissa v.

B Bhupendra Kumar Bose ( 1962) Supp. 2 SCR 380 and T. Venkata Reddy

v. State of Andhra Pradesh ( 1985) 3 SCC 198, the matter was referred

to a bench

of Seven-Judges for an authoritative pronouncement.

c

3. In the order proposed by Chandtachud, J., his Lordship has

dealt with, at great length, several aspects that arise directly or incidentally

for our adjudication and

inter alia concluded that seven successive

repromulgations

of the first ordinance issued in 1989 was a fraud on the

Constitution especially when none

of the ordinances were

ever tabled

before the Bihar Legislative Assembly as required under Article 213(2)

of the Constitution. I am in complete agreement with the view expressed

by my esteemed brother Dr. Chandrachud, J. that repeated

D repromulgation of the ordinances was a fraud on the Constitution

especially when the Government

of the time appears to have persistently

avoided the placement

of the ordinances before the legislature. In light

of the pronouncement of this Court in D.C. Wadhwa's case (supra),

such repeated repromulgations were legally impermissible which have

E

F

been rightly declared to be so by the High Court. Even Lokur, J. has, in

the order proposed by His Lordship, found repromulgated ordinances to

be unconstitutional except for the first three ordinances which, according

to His Lordship, survive not because they were

un~ffected by the vice

of unconstitutionality but because they were not challenged by the

petitioners. The need for such a challenge did not in my opinion arise. I

say so with respect because the first, second and third ordinances stood

repealed by the subsequent ordinances issued by the Government. At

any rate, since the process

of issuing the ordinances and repromulgation

thereof was in the nature

of a single transaction and a part of a single

series on the same subject the vice

of invalidity attached to any such

exercise

of power would not

spare the first, second and the third

G

ordinances which would like the subsequent ordinances be

unconstitutional on the same principle. These ordinances provided the

foundation for the edifice

of the subsequent repromulgations. If the

edifice was affected, there is no way the foundation could remain

unaffected by the vice ofunconstitutionality. I would in that view agree

H

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 275

[T. S. THAKUR, CJI]

with the conclusion drawn by Chandrachud, J. that the ordinances in A

question starting with Ordinance 32 of 1989 and ending with Ordinance

2of1992 were all constitutionally invalid, the fact that none of them was

ever placed before the State legislature as required under Article 213

(2) of the Constitution of India, lending support t-0 that conclusion.

4. The next question then is whether ordinances issued by the B

Government in exercise of its powers under Article 213 or for that matter

123 can create enduring rights in favour of individuals affected thereby.

I agree with the concurring views expressed by Lokur and Chandrachud,

JJ. that the nature of power invoked for issuing ordinances does not

admit of creation of enduring rights in favour of those affected by such C

ordinances. I also agree with the view that the Constitution Bench

decision in Bhupendra Kumar Bose and T. Venkata Reddy (supra) to

the extent the same extended the theory of "creation of enduring

rights" to legislation by ordinances have not been correctly decided and

should stand overruled. lt follows that the ordinances issued in the instant

case could not have created any enduring rights in favour of Sanskrit D

school teachers particularly when the ordinances themselves were a

fraud on the Constitution. The High Court and so also the views

· expressed by my esteemed brothers Madan B. Lokur and Chandrachud,

JJ. on this aspect are in my opinion legally unexceptionable.

5. That brings me to the question whether the benefit of salaries E

drawn by Sanskrit school teachers covered by the ordinances can be

reversed and the amount so received by them, recovered by the State

Government. Lokur, J. has taken the view that since the first three

ordinances are valid, anything received by them dming the currency of

the said ordinance cannot be recovered. Chandrachud, J. has also in

conclusion directed that no recovery of salaries which have been paid F

shall

be made from any of the employees. I concur with that direction,

for in my opinion teachers

who were paid their salaries under the

ordinances and who organised their lives and affairs on the assumption

and in the belief that the amoimt paid to them was legitimately due and

payable cannot at this distant point of time be asked to coi1gh up the G

amount disbursed to tlfem. Payments already made shall not accordingly

be recoverable from those who have received the same.

6. The order proposed by Chandrachud, J. also deals with several

other aspects including the question whether the obligation to place an

ordinance before the legislature in terms of Article 213 and 123 is H

276 SUPREME COURT REPORTS [2017] S S.C.R.

A mandatory and whether non-placement of ordinances before the

Parliament and the State legislature as the case may be would itself

constitute a fraud on the Constitution. While Chandrachud,

J. has taken

the view that placing

of the ordinances is an unavoidable Constitutional

obligation and the breach whereof affects the efficacy

of the ordinances,

B Lokur,

J. has taken a different view. In my opinion, the question whether

placing the ordinance before the legislature is mandatory need not be

authoritatively decided as this appeal and the Writ Petitions out

of which

the same arises can be disposed

of without addressing that question.

Regardless whether the requirement of placing the ordinance is

mandatory as held by Chandrachud,

J. or directory as declared by

Lola.Jr

C J ., the repeated repromulgation of the ordinances were in the light of the

pronouncement

of this Court in D.C Wadhwa's case constitutionally

impermissible and a fraud on the powers vested in the executive.

If that

be so, as appears to be the case, the question whether the placement

of

the ordinances will per se render it unconstitutional, need not be gone

D into. There may indeed be situations in which a repromulgation may be

necessary without the ordinances having been

placed before the

legislature. Equally plausible

is the argument that the constitution provides

for the life

of ordinances to end six weeks from

the·date ofre-assembly

of the legislature, regardless whether the ordinances has or has not been

E

F

placed before the house. The three scenarios which Lokur, J. has referred

to in his order are real life possibilities and ought to be addressed without

giving rise to any anomalies. This may require a deeper deliberation

which can be undertaken in an appropriate case. Non-presentation

of

the ordinances before the State Legislature was, at any rate, only a

circumstance to show that the executive had invoked the power vested

in it without complying with the concomitant obligation

of placing the

ordinances before the legislature even when it had the opportunity to do

so. The High Court was therefore right in holding that no relief on that

basis could be granted to the writ petitioners. I would, in that view, 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

G Parliament/legislature open. With these few lines the reference shall

stand answered in terms

of what is proposed by brother Chandrachud, J.

Devika Gujral Reference answered.