No Acts & Articles mentioned in this case
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5875 OF 1994
KRISHNA KUMAR SINGH & ANR. .....APPELLANTS
VERSUS
STATE OF BIHAR & ORS. ....RESPONDENTS
WITH
CIVIL APPEAL NOS. 5876-5890 OF 1994
WITH
WRIT PETITION (C) NO. 580 OF 1995
AND
CIVIL APPEAL NOS. 3533-3595 OF 1995
J U D G M E N T
Madan B. Lokur, J.
1.Having carefully read the erudite judgment prepared by brother
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
1
Page 2 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. Bhupendra Kumar Bose
1
and T.
Venkata Reddy v. State of Andhra Pradesh
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
of Bihar, their validity must be assumed. Consequently, even though these three
1
1962 Supp (2) SCR 380 – Bench of 5 Judges
2
(1985) 3 SCC 198 – Bench of 5 Judges
2
Page 3 Ordinances may have been repealed, the employees would be entitled to the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, 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.
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 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 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 of Bihar
which has two Houses of the Legislature.
3
Page 4 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 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 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 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.” 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 concerned
with it.
4
Page 5 7. There is no dispute in these appeals that the Governor of Bihar
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 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 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 that the separation of
powers between the Executive and the Legislature is maintained and is also
expected to ensure that the Executive does not transgress the constitutional
boundary and encroach on the 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
5
Page 6 State Legislature, it ceases to operate as provided in Article 213(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
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. 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 of a 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
6
Page 7 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 if it is not so laid?
(b) 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. 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 (1) 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 passed, it shall be forwarded to the other House with a
message asking for its concurrence.
7
Page 8 (c) 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. What could happen thereafter?
I propose to deal with each possible scenario.
First scenario
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.
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 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
8
Page 9 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 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. If an
Ordinance is not laid before the State Legislature it does not become invalid or
void. However, a view has been expressed 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 Assembly. I
am afraid the force and effect of a law cannot depend on an uncertainty and the
occurrence of a 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 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 have the same
force and effect as an Act of the Legislature of the State assented to by the
9
Page 10 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
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.
17. If an Ordinance not laid before the Legislative Assembly does 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 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 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). 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
10
Page 11 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. A contrary view blurs that distinction and effectively converts an
Ordinance otherwise valid 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 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 keeping a check on the Executive riding roughshod over democratic
requirements and exert their constitutional 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 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
11
Page 12 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 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.
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
12
Page 13 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) 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 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.
23. The reasons for withdrawal of an Ordinance by the Governor 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.
13
Page 14 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.
27. In other words, several possibilities get thrown up when an 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.
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.
5
In that case, the Orissa Municipal Elections Validation Ordinance,
1959 (Orissa Ordinance No.1 of 1959) was promulgated by the Governor of
Orissa on 15
th
January, 1959. It is not clear whether the Ordinance was laid
before the State 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
4
1962 Supp (2) SCR 380 – Bench of 5 Judges
5
OJC No.12 of 1959 decided on 20.03.10959 by the Orissa High Court
[MANU/OR/0014/1960]
14
Page 15 23
rd
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 had no impact
on the life of the Ordinance which lapsed apparently on 1
st
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, if the introduction of a Bill
is declined by the Legislative Assembly or a Bill introduced in the Legislative
Assembly is defeated, it will have no impact on an Ordinance laid before the
Legislative Assembly which will continue to operate till it is disapproved or it
ceases to operate at the expiration of six weeks of reassembly of the Legislative
Assembly. Whether to pass or not pass or enact or not enact a Bill into a law is
entirely for the Legislative Assembly to decide regardless of the fate of the
Ordinance, as is obvious or is even otherwise evident from Bhupendra 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 Legislative Assembly on
15
Page 16 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 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 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 hypothetically could provide for such a
savings clause, the State Legislature may not accept it, since a Bill introduced by
16
Page 17 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.
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 Ordinance has ceased to operate. Do actions or transactions concluded 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 of its repeal. Section 6 of the General
Clauses Act, 1897 is quite explicit on the effect of the repeal of an Act passed by
a Legislature.
35. In so far as a temporary Act is concerned, actions taken during its life but
not concluded before it terminates (pipeline transactions) will not continue
thereafter since those actions and transactions would not be supported by any
existing law. However, to tide over any difficulty that might be caused in such an
eventuality, a temporary Act could provide for the continuance of such actions
and transactions. The reason for this is that a temporary Act is enacted by the
Legislature and it certainly has the power to cater to such eventualities.
17
Page 18 Therefore, if there 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, 1950 (a temporary
Act that would cease to have effect on 1
st
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 detention of detenus
(such as the petitioners therein who were already under detention) was extended
from one year to two years by extending the life of the Preventive Detention Act,
1950 till 1
st
April, 1952.
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
st
February, 1951 (as in the case of some petitioners) could continue beyond 31
st
March, 1951 (or 1
st
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 1
st
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
6
(1951) SCR 621 – Bench of 5 Judges
18
Page 19 effect as if it had been made under this Act as amended by the Preventive
Detention (Amendment) Act, 1951; and
(b) nothing contained in sub-section (3) of Section 1, or sub-section (1) of
Section 12 of this Act as originally enacted shall be deemed to affect the
validity or duration of any such order.”
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
st
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
th
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 of life was
19
Page 20 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 valid, the
petitioners were not entitled to release merely on the ground that the period of
one year mentioned in the Preventive Detention Act, 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 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 further effect.
Therefore, offences committed against temporary Acts must be
prosecuted and punished before the Act expires.” (Craies on Statute
Law, 4
th
edition, p. 347).
But transactions which are concluded and completed before the Act
expires continue in being despite the expiry. See Craies on 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 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].
20
Page 21 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 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.
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
7
, Steavenson v. Oliver
8
and Wicks v. Director of Public Prosecutions
9
.
43. In Warren the decision of the Court 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, C.J. 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
7
(1803) 3 East 205; 102 E.R. (KB) 578
8
151 E.R. 1024
9
[1947] AC 362
21
Page 22 statute of 19 Geo. 2, c. 35, 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 1
st
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 11
th
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 1
st
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 1
st
of August, 1815, and that their privilege
as such was of an executory nature, capable of being carried into effect
after the 1
st
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
22
Page 23 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:
“Section 11 begins with the words “Subject to the provisions of this
section,” and those introductory words are enough to warn 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-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 statute, 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 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 Bhupendra Kumar Bose:
“It is true that the provisions of Section 6 of the General Clauses Act in
relation to the effect of repeal do not apply to a temporary 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
23
Page 24 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, made 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
24
Page 25 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 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.
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 of a 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 the
historical background relating to Ordinances.
25
Page 26 Historical background
51. Section 88 of the Government of India Act, 1935 gave power to the
Governor of a Province to promulgate an Ordinance during the recess of the
Legislature, if he 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 Governor’s Act containing such provisions as he
considers necessary. Sub-section (3) of Section 90 of the Government of India
Act, 1935 provides that a Governor’s Act shall have the same force and effect as
an Act of the Provincial Legislature assented to by the Governor. 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 88 and Section
90 of the Government of India Act, 1935 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 Government of India 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
26
Page 27 of the Government of India 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.
54. 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 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 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 the Proclamation issued under Article 356 of the
Constitution has ceased to operate.
27
Page 28 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 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).
56. 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.
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
28
Page 29 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.
59. Assuming there is no real distinction between a temporary 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) an Ordinance cannot provide for a savings clause that will operate
beyond the life of 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.
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
29
Page 30 61. In Venkata Reddy this Court went a step further than Bhupendra Kumar
Bose and introduced the concept of irreversibility of a completed transaction as
against the enduring character of a right or liability laid down in Bhupendra
Kumar Bose. The decision in Venkata Reddy dealt with the validity of the
Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984
(Ordinance 1 of 1984) promulgated by the Governor of Andhra 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 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 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 to 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 as a law from the date of its promulgation till the date it ceases
to operate. This is quite obvious from a reading of Article 213(2) of the
30
Page 31 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 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.
31
Page 32 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 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.
32
Page 33 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 Bhupendra
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, Arunachal Pradesh Legislative Assembly
10
this Court can always
restore the status quo ante. Bhupendra Kumar Bose and Venkata Reddy did not
present any insurmountable situation.
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
10
(2016) 8 SCC 1 – Bench of 5 Judges
33
Page 34 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 if he 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 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. I agree that the fourth Ordinance and
subsequent Ordinances should be struck down.
11
(1987) 1 SCC 378 – Bench of 5 Judges
34
Page 35 Relief
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 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 of Bihar has not justified their promulgation. They 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.
……………………… ..J
New Delhi; ( Madan B. Lokur )
January 2, 2017
35
Page 36 R E P O R T A B L E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5875 OF 1994
KRISHNA KUMAR SINGH & ANR. ...PETITIONERS
VERSUS
STATE OF BIHAR & ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NOS.5876-5890 OF 1994
WRIT PETITION (C) NO.580 OF 1995
CIVIL APPEAL NOS.3533-3595 OF 1995
O R D E R
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 Madan B. Lokur,
J. to the same. The genesis of the controversy giving
rise to this reference to a larger bench has been
elaborately set out in the order proposed by
36
Page 37 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 arises for our consideration
is whether seven successive repromulgations of 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 decision of this
Court in D.C. Wadhwa and Ors. v. State of 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 Sujata V. Manohar and
D.P. Wadhwa, JJ. who differed in their opinions
resulting in a reference of the appeal to a bench of
37
Page 38 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. 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.
3.In the order proposed by Chandrachud, 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 aUntitled 2 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
repromulgation of the ordinances was a fraud on the
Constitution especially when the Government of the
38
Page 39 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 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 unaffected 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
ordinances which would like the subsequent ordinances
39
Page 40 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. I
would in that view agree with the conclusion drawn by
Chandrachud, J. that 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, lending support to that
conclusion.
4.The next question then is whether ordinances
issued by the 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 ordinances. I also agree with the
40
Page 41 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. It
follows that 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 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 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
during the currency of the said ordinance cannot be
recovered. Chandrachud, J. has also in conclusion
directed that no recovery of salaries which have been
41
Page 42 paid 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 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.
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
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, Lokur, J. has
taken a different view. In my opinion, the question
42
Page 43 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 Lokur 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 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 of
re-assembly of the legislature, regardless whether the
ordinances has or has not been placed before the
house. The three scenarios which Lokur, J. has
43
Page 44 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 Parliament/legislature open.
With these few lines the reference shall stand
answered in terms of what is proposed by brother
Chandrachud, J.
..................CJI.
(T.S.THAKUR)
NEW DELHI;
JANUARY 2, 2017.
44
Page 45 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 5875 OF 1994
KRISHNA KUMAR SINGH & ANR .....APPELLANTS
Versus
STATE OF BIHAR & ORS .....RESPONDENTS
WITH
CIVIL APPEAL Nos. 5876-5890 of 1994
WITH
W.P.(C) No. 580 OF 1995
WITH
CIVIL APPEAL Nos. 3533-3595 OF 1995
J U D G M E N T
Dr D Y CHANDRACHUD, J
A Re-promulgation of Ordinances : the background to the reference
A professor of economics who was pursuing his research on land tenures
in Bihar stumbled upon a startling practice. Ordinances were promulgated and
45
Page 46 re-promulgated by the Governor of Bihar – two hundred fifty six of them
between 1967 and 1981. These Ordinances were kept alive for long periods,
going upto fourteen years. This academic research into the re-promulgation of
Ordinances became the subject of a book
12
and a petition under Article 32 of
the Constitution. The book provided the backdrop of a judgment of a
Constitution Bench of this Court in D C Wadhwa v. State of Bihar.
13
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’
14
.
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
12
Re-promulgation of Ordinance: A fraud on the Constitution of India
13
(1987) 1 SCC 378
14
[ Id. at paragraph 8, page 395]
46
Page 47 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 appeal against the decision of
the High Court came up before a Bench of two judges of this Court in Krishna
Kumar Singh v. State of Bihar
15
, both the judges – Justice Sujata Manohar
and Justice D 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 Sujata Manohar held that the first Ordinance was
also invalid being a part of the chain of Ordinances. Justice Wadhwa, however,
held that the first Ordinance is valid and that its effect would endure until it is
reversed by specific legislation. The difference of opinion between the two
judges was in their assessment of the constitutional validity of the first
Ordinance; one of them holding that it is invalid while the other held it to be
constitutional.
4 When the case came up before a Bench of three judges
16
, it was referred to
a Bench of five judges on the ground that it raised substantial questions relating
to the Constitution.
17
The proceedings before the Constitution Bench on 23
November 2004 have resulted in a reference to a larger Bench of seven
15
(1998) 5 SCC 643
16
Justices SP Bharucha, GB Pattanaik and S RajendraBabu
17
Order dated 6 November 1999 in CA 5875 of 1994
47
Page 48 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 of
Orissa vs. Bhupendra Kumar Bose, 1962 (Supp.2)
SCR 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 478. All these
decisions are Constitution Bench decisions.
Mr.Rakesh Dwivedi, learned senior counsel for the
respondent-State of Bihar, 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-Judge Bench of this Court. Be listed
accordingly.”
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
48
Page 49 by the Governor of Bihar on 18 December 1989
18
. 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 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 :
“3. Taking over of management and control of
non-government Sanskrit schools by State
Government – (1) 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.
(2) All the assets and properties of all the Sanskrit
schools mentioned in sub-section (1) 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
18
Ordinance 32 of 1989
49
Page 50 permanently or temporarily against sanctioned posts in accordance with the
prescribed standard and staffing pattern prescribed 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:
Provided, that the services of those teaching or
non-teaching employees who are in excess of the
sanctioned strength or do not 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 of Bihar”.
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
50
Page 51 functions 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. 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
19
was for a period of two months 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
the third in the succession of Ordinances
20
was promulgated. The next session
of the Vidhan Sabha took place between 22 June 1990 and 9 August 1990, as a
19
The Vidhan Sabha was convened for its 11
th
session which lasted from 29 June 1989 to 3 August 1989 after the
Ordinance was promulgated, the 12
th
Session of the Vidhan Sabha commenced on 18 January 1990.
20
Ordinance 14 of 1990.
51
Page 52 result of which the life of the Ordinance was about three months. The first,
second and third Ordinances were in similar terms.
7 On 13 August 1990 the Governor promulgated a fresh Ordinance.
21
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
follows :-
“3 Taking over of management and control of
non-government Sanskrit schools by State
Government.—(1) 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 in Annexure 1
of this Ordinance 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 from Annexure 1
of the Ordinance through notification in State
Gazette.
(2) All the assets and properties of all the Sanskrit
schools, mentioned in sub-section (1) and of the
governing bodies, managing committees,
incidental thereto whether moveable or immovable
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.—(1) 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
21
Ordinance 21 of 1990
52
Page 53 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 the staff individually and will come on
a decision about validity of posts sanctioned by
governing body of the school, appointment
procedure and affairs of promotions or confirmation
of services. Committee will consider the need of
institution and will submit its report after taking
stock of the views regarding qualification,
experience and other related and relevant
subjects. Committee will also determine in its
report whether the directives regarding reservation
for SC, ST and OBCs has been followed or not.
(3) State Government, after getting the report, will
determine the number of staff as well as procedure
of appointments and will go into the affair of
appointment of teaching and other staff on
individual basis and in the light of their merit and
demerit will determine whether his service will be
integrated with the Government or not.
Government will also determine the place, salary,
allowances and other service conditions for them”.
Clause 16 provided for repeals and savings in the following terms:
“16. Repeal and savings .—(1) The Bihar
Non-Government Sanskrit Schools (Taking Over of
Management and Control) Ordinance, 1990 (Bihar
Ordinance 14, 1990) is hereby repealed.
(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 powers 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.”
53
Page 54 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
22
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.
23
The next session of the Vidhan Sabha took
place from 1 December 1991 to 18 December 1991. Upon the conclusion of the
session, the seventh of the Ordinances was promulgated on 21 January 1992.
24
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 after the 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).
22
Ordinance 10 of 1991
23
Ordinance 31 of 1991
24
Ordinance 2 of 1992
54
Page 55 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.
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;
(ii)Whether as a result of clause 4 of the fourth Ordinance
25
the
employees had ceased to be government servants which they have
become in terms of the first Ordinance
26
promulgated 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 Court 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
25
Ordinance 21 of 1990
26
Ordinance 32 of 1989
55
Page 56 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 passed 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 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.
56
Page 57 D The two differing judgments
11Before the Bench of two judges of this Court
27
, 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 of Bihar 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
the 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 permit 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 the 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)
27
The Referring judgment is reported in (1998) 5 SCC 643: See paragraph 24 at page 161
57
Page 58 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 permanent effect or a right of an
enduring nature which subsists beyond 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 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
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)
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
58
Page 59 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.
12Justice D P Wadhwa, on the other hand differed with the view of Justice
Sujata Manohar in regard to the validity of the first Ordinance. The learned
Judge formulated his reasons in the following propositions :
“59....(1) It is fairly established that Ordinance is
the “law” and 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 a legislative power and
an Ordinance shall have the same force as an Act,
an Ordinance should be clothed with all the
attributes of an Act of 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.
(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 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
59
Page 60 the person, that right cannot 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.
(8) An Ordinance is effective till it ceases to
operate on the happening of the events mentioned
in clause (2) of Article 213. Even if it ceased to
operate, the effect of the Ordinance is irreversible
except by express legislation.
(9) A mere disapproval by the legislature of an
Ordinance cannot revive closed or completed
transactions.
(10) 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 law can be passed
operating retrospectively to that effect subject to
other constitutional limitations.” (id at pgs.677-678)
In the view of the learned Judge :
“67..... The effect of the first Ordinance has been of
enduring nature. Whatever the Ordinance ordained
was accomplished. Its effect was irreversible. The
Ordinance was promulgated to achieve a particular
object of taking over the Sanskrit schools in the
State including their assets and staff and this
having been done and there being no legislation to
undo the same which power the legislature did
possess, the effect of the Ordinance was of
permanent nature. The Ordinance is like a
temporary law enacted by the legislature and if the
law lapses, whatever has been achieved there
under could not be undone, viz., if under a
temporary law land was acquired and building
constructed thereon, it could not be said that after
the temporary law lapsed the building would be
60
Page 61 pulled down and land reverted back to the original
owner”. (Id at pg.683)
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.
13Now it is in this background that it would be necessary to advert to the
evolution and scope of the Ordinance making power.
61
Page 62 E Historical evolution
E.1 England
14In the United Kingdom, the prerogative of the Monarch to legislate
domestically was set at rest about four hundred years ago by Sir Edward Coke
by his opinion in The Case of Proclamations.
28
. The opinion ruled that :
“The King by his proclamation or other ways
cannot change any part of the common law, or
statute law, or the customs of the 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 ruled, 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,
29
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 in The Zamora [1916] 2 AC 77,
90:
“The ideas that the King in
Council, or indeed any branch of
the executive, has power to
28
(1611) 12 Co Rep 74
29
[2010] 3 WLR 1526
62
Page 63 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)
15Tracing 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
30
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 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.2British India
16The dilution of the power of the Monarch 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
of law. A power was conferred upon the Governor General to issue ordinances
30
Shubhankar Dam – “Presidential Legislation in India The Law and Practice of Ordinances [Cambridge University
Press – page 144 at pages 37, 38]
63
Page 64 by Section 23, subject to two conditions : (i) the power could be exercised in
cases of emergency; and (ii) an Ordinance would remain in force for a period of
not more than six months from its promulgation. Under the Government of India
Act, 1915, the power to issue Ordinances was retained. In the Government of
India 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 if before 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 message to the chambers of the
64
Page 65 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.
F Constituent Assembly
17The Union Constitution Committee was appointed by the Constituent
Assembly on 30 April 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
31
]. 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.
18After 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 K T Shah observed that however justified such a power
31
Universal Law Publishing New Delhi (2006) Vol.II page 485
65
Page 66 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, by any mention
here imply or convey or suggest that the law
making powers of the President are any but
extraordinary powers. I think this is sufficiently
clear, and will be acceptable to the House.”
Another member of the Constituent Assembly, B Pocker Sahib, moved an
amendment for the inclusion of a proviso in draft Article 102(1) in the following
terms :
“Provided that such ordinance shall not deprive
any citizen of his right to personal liberty except on
conviction after trial by a competent court of law.”
This amendment was moved with a view to securing the fundamental right of
the citizen to be tried by a court of law.
19H V Kamath moved an amendment that would ensure that an ordinance
upon promulgation shall be laid before both Houses of Parliament within four
66
Page 67 weeks of its promulgation. This, he observed, was necessary to restrict the
ordinance making power “as far as we can” and to provide “a constitutional
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
period of more than seven and a half months.
20Pandit 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 of India Act, 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.”
“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
67
Page 68 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.”
21Professor K T Shah expressed the view that even if an ordinance 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 of law.
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 if it 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.”
22Sardar 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
68
Page 69 dictatorial. Conventions would 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.”
23The 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 Government of India Act, 1935 was a
parallel legislative authority with an independent power of
legislation even when Parliament was in session draft Article 102 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 of law. 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 come to an e-nd upon the expiry of thirty days from its
promulgation. The objections expressed by H N Kunzru to the duration of an
69
Page 70 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
25Chapter IV of the Constitution contains a single constitutional 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 of legislature”.
26The Constitution has followed the same pattern while 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 session.
Article 213 provides as follows :
“213. Power of Governor to promulgate
Ordinances during recess of Legislature.—(1) 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
Ordinances as the circumstances appear to him to
require:
70
Page 71 Provided that the Governor shall not, without
instructions from the President, promulgate any
such Ordinance if—
(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 President; or
(c) an Act of the Legislature of the State
containing the same provisions would under this
Constitution have been invalid unless, having been
reserved for the consideration of the President, it
had received the assent of the President.
(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 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
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 having a Legislative Council
are summoned to reassemble on different dates,
the period of six weeks shall be reckoned from the
later of those dates for the purposes of this clause.
(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:
71
Page 72 Provided that, for the purposes of the
provisions of this Constitution relating to the effect
of an Act of the Legislature of a State which is
repugnant to an Act of Parliament or an existing
law with respect to a matter enumerated in the
Concurrent List, an Ordinance promulgated under
this article in pursuance of instructions from the
President shall be deemed to be an Act of the
Legislature of the State which has been reserved
for the consideration of the President and assented
to by him.”
27The authority which is conferred upon the Governor to promulgate
Ordinances is conditioned by two requirements. The first is that an Ordinance
can be promulgated only when the state legislature is not in session. When the
legislature is in session, a law can only be enacted by it and not by the
Governor issuing an Ordinance. The second requirement is that the Governor,
before issuing an Ordinance has to be satisfied of the existence of
circumstances rendering it necessary to take immediate action. The existence
of circumstances is an objective fact. The Governor is required to form a
satisfaction of the existence of circumstances which makes it necessary to take
immediate action. Necessity is distinguished from a mere desirability. The
expression “necessity” coupled with “immediate action” conveys the sense that
it is imperative due to an emergent situation to promulgate an Ordinance during
the period when the legislature is not in session. The Governor 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
72
Page 73 Ordinance can be issued when the legislature is in session. The second
requirement conditions the Ordinance making power upon the prior satisfaction
of the Governor of the existence of circumstances necessitating immediate
action. The power conferred upon the Governor is not in the nature of and does
not make the Governor a parallel law making authority. The legislature is the
constitutional repository of the power to enact law. The legislative power of the
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;
(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, failing which it
would be invalid.
28The first of the above conditions arises in a situation such as the proviso
to Article 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 with or within that state
(notwithstanding anything in Articles 301 or 303). The proviso requires the
73
Page 74 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 which in 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 assent 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
th
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 clear 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.
29An 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
74
Page 75 state” or before both the Houses in the case of a bi-cameral legislature. Is the
requirement of laying an Ordinance before the state legislature mandatory?
There can be no manner of doubt that it is. 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 shelf life 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 with 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 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
75
Page 76 legislature if a 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)By 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.
30The 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).
31Laying 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 of law 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 of Ministers is collectively responsible
to the elected legislative body to whom the government is accountable. The
76
Page 77 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 Seventh Schedule. Constitutional control of Parliament and
the state legislatures over the Ordinance making power of the President (under
Article 123) and the Governors (under Article 213) is a necessary concomitant
to the supremacy of a democratically elected legislature. The reassembling of
the legislature defines the outer limit for the validity of the Ordinance
promulgated during its absence in session. Within that period, a legislature has
authority to disapprove the Ordinance. The requirement of laying an Ordinance
before the legislative body subserves the constitutional purpose of ensuring that
the provisions of the Ordinance are debated upon and discussed in the
legislature. The legislature has before it a full panoply of legislative powers and
as an incident of those powers, the express constitutional authority to
disapprove an Ordinance. If an Ordinance has to continue beyond the tenure
which is prescribed by 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 assume the character of a law enacted by the
state legislature merely upon the passing of a resolution approving 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
77
Page 78 an ordinance; (ii) whether a law should be enacted; or (iii) whether the
Ordinance should be disapproved.
32The 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 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). 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 of Bihar of promulgating and re-promulgating Ordinances, none of
which was laid before the state legislature. Such a course of 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.
H Precedent
H.1 Nature of the power
78
Page 79 33The 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 of legislative 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 III 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
“(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
79
Page 80 made by the President or, to an Ordinance made
by a Governor, as the case may be.”
Interpreting these provisions, a Constitution Bench of this Court in R.K. Garg v.
Union of India
32
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 of
legislation
33
”. 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 of legislative control in
the following observations:
“...The conferment of such power may appear to
be undemocratic but it is not so, because the
executive is clearly answerable to the legislature
and if the President, on the aid and advice of the
executive, promulgates an Ordinance in misuse or
abuse of this power, the legislature can not only
pass a resolution disapproving the Ordinance but
can also pass a vote of no confidence in the
executive. There is in the theory of constitutional
32
(1981) 4 SCC 675
33
(Id at pg.687)
80
Page 81 law complete control of the legislature over the
executive, because if the executive misbehaves or
forfeits the confidence of the legislature, it can be
thrown out by the legislature”. (id at paragraph 4,
page 688)
34In the view of the Constitution Bench, “there is no qualitative 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 of India
34
where this Court spoke about “the
exact equation, for all practical purposes, between a law made by the
Parliament and an ordinance issued by the President”
35
. The submission
before the Court in a challenge to the validity of the National Security Ordinance
was that an Ordinance is an exercise 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 of legislative
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
34
(1982) 1 SCC 271
35
(id at para 14 page 290)
81
Page 82 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”
36
, 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 of the government and the liberties of the people
not disturbed or 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
36
[ Id at para 16 page 292]
82
Page 83 emphasise that the fiction which is created by Article 213(2) is subject to its
provisions which are : firstly, the duration of an Ordinance 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 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 that the constitutional fiction is subject to the conditions that
are prescribed in the constitutional provision.
I Presidential satisfaction
36The constitutional power which has been conferred upon the President
under Article 123 and upon the Governors under Article 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 Article 123) or the Governor (under Article
213) “that circumstances exist which render it necessary for him to take
immediate action.”
83
Page 84 37In R C Cooper v. Union of India
37
, 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 J C Shah speaking for the 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 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)
However, the issue had been rendered academic because the ordinance had
been replaced by a legislative enactment. The justiciability of the satisfaction
was not conclusively decided.
38The 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
123 and 213 by which the satisfaction of the President or, as the case may be
37
(1970) 1 SCC 248
84
Page 85 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.
39The effect of this deletion (of clause 4) was urged before a Constitution
Bench of this Court in A K Roy v. Union of India
38
, 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 of Justice Shah and Justice Hegde in
Madhav Rao v. Union of India
39
. 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 constituted courts.” (Id at p.296)
38
(1982) 1 SCC 271
39
(1971) 3 SCR 9
85
Page 86 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 A K Roy, Chandrachud, CJ speaking for the Constitution Bench held that the
issue as to whether the conditions for the exercise of the power under Article
213 had been fulfilled could not be regarded as a political question:
“26.We 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 of its
Constitution which has adopted the system of a
rigid separation of power, unlike ours.” (Id at p.
296)
The Constitution Bench held that the earlier case, State of Rajasthan v. Union
of India
40
was decided at a time when the presidential satisfaction under clause
1 of Article 123 had been made final by the thirty-eighth amendment. This Court
held that it is arguable that after the forty-fourth amendment, judicial review of
the President’s satisfaction is not totally excluded. The observations of
Chandrachud, CJ, speaking for the Constitution Bench are thus :
“27. The Rajasthan case [State of
Rajasthan v. Union of India, (1977) 3 SCC 592 :
(1978) 1 SCR 1] is often cited as an authority for
the proposition that the courts ought not to enter
40
(1978) 1 SCR 1
86
Page 87 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 by the
38th Amendment, 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 44th
Amendment 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)
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
Reddy in the nine judge bench decision In S R Bommai v. Union of India
41
:
“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 [(1982)
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)
41
(1994) 3 SCC 1
87
Page 88 As the above extract indicates, the observations in A K Roy found a 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 of a 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 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 if the
invalidity or unconstitutionality of the Proclamation
is clearly made out. Refusal to interfere in such a
case would amount to abdication of the duty cast
upon the court — Supreme Court and High Courts
— by the Constitution.” (Id at p.266-267)
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)
40 Applying the principles which emerge from the judgment of 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
88
Page 89 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 v. Union of India
42
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 213 is challenged. The court will not enquire into the
adequacy, or sufficiency of the material before the President or the Governor.
The court will not interfere if there 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 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 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 judicial review cannot be supported as
a matter of first principle or on the basis of constitutional history.
42
(1992) Supp. (3) SCC 217
89
Page 90 JRe-promulgation
41The 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 transgression 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
42The rationale for the conferment of a power to promulgate ordinances
upon the President and the Governors is that the law, particularly a compact of
governance, would not accept a state of constitutional vacuum. The legislature
is not always in session. Convening it requires time. In the meantime,
unforeseen events may arise which need legislative redressal. An ordinance
can be promulgated only when the legislature is not in session. But the
legislature has to be convened at an interval of no later than six months. The
life of an ordinance is restricted in time: six weeks after the reassembly of the
legislature, it ceases to operate. Even within this period, a resolution can be
passed by the legislature disapproving of the ordinance promulgated in its
absence. In such an event, an ordinance made by the Governor on the aid and
advice of the Cabinet ceases to operate. The constitutional conferment of a
90
Page 91 power to frame ordinances is in deviation of the normal mode of legislation
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 circumstances which can brook
no delay in the formulation of legislation. 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 ordinance 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 its power to enact law, to determine the
need for the provisions which the ordinance incorporates and the expediency of
enacting them into legislation. Once the legislature has convened in session,
the need for an ordinance is necessarily brought to an end since it is then for
91
Page 92 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.
43A reasonable period is envisaged by the Constitution for the continuation
of an 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 if there 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?
44Re-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
92
Page 93 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.2D C Wadhwa
45The judgment of the Constitution Bench in D C Wadhwa v. State of
Bihar
43
held that the re-promulgation of ordinances by the State of Bihar
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
43
(1987) 1 SCC 378
93
Page 94 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 to
be “perverted to serve political ends”. It is contrary
to all 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 if the 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 if the executive
were permitted to continue the provisions of an
ordinance in force by adopting the methodology of
repromulgation without submitting to the voice of
the legislature, it would be nothing short of
Susurpation by the executive of the law-making
function of the legislature. The executive cannot by
taking resort to an emergency power exercisable
by it only when the legislature is not in session,
take over the law-making function of the
legislature. That would be clearly subverting the
democratic process which lies at the core of our
constitutional scheme, for then the people would
be governed not by the laws made by the
legislature as provided in the Constitution but by
laws made by the executive.” (Id at p. 392)
94
Page 95 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 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
95
Page 96 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
46Article 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
44
: “to stop,
give over, discontinue, desist; to come to the end.”P Ramanatha Aiyar’s, The
Major Law Lexicon
45
defines the expression “cease” to mean “discontinue or
put an end to”. Justice C K Thakker’s Encyclopaedic Law Lexicon
46
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
47
.
47In a judgment of a Division Bench of the Andhra Pradesh High Court in
Mahanat Narayan Dessjivaru v. State of Andhra
48
, 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 scope for importing any notion of
suspension into that expression. A discontinuation took effect “once for all
49
”.
44
The Oxford English Dictionary (II Edition) : Clarendon Press, pg. 1014
45
The Major Law Lexicon (IV Edn. Pg. 1053)
46
Ashoka Law House, New Delhi (india) pg. 879
47
XthEdn. Pg. 268
48
AIR (1959) AP 471
49
Id at para 28, pg. 474
96
Page 97 48The 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.
49The 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
50
defines disapproval as “a negative decision or attitude
towards someone or something.”
50The issue before the court is of the consequence of an ordinance
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 of law 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
50
10
th
Edn. Pg. 268
97
Page 98 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. In
this view, disapproval amounts to an obliteration of the effect of all that had
transpired in the meantime. At the other end of the spectrum is the view that an
ordinance upon being promulgated has the force and effect of a law enacted by
the legislature. Hence, the lapsing of its term (on the expiry of six weeks or the
passing of a resolution of disapproval)means that the ordinance ceases to
operate from that date. Until the ordinance ceases to operate, it continues to
have the force of law with the result that the enduring effects of an ordinance or
consequences which have a permanent character may subsist beyond the life
of ‘the’ ordinance. Alternatively, where a situation has been altered irreversibly
in pursuance of the legal authority created by the ordinance, the clock cannot
be set back to revive the state of affairs as it existed prior to the promulgation of
the ordinance.
51Before 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,
51
an ordinance was promulgated by the Governor of
East Punjab under Section 88 of the Government of India Act, 1935, 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
51
AIR (1955) SC 84
98
Page 99 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 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 :
99
Page 100 “8…..Whenever there is a repeal of an enactment,
the consequences laid down in Section 6 of the
General Clauses Act will follow unless, as the
section itself says, a different intention appears. In
the case of a simple repeal there is scarcely any
room for expression of a contrary opinion. But
when the repeal is followed by fresh legislation on
the same subject we would undoubtedly have to
look to the provisions of the new Act, but only for
the purpose of determining whether they indicate a
different intention. The line of enquiry would be, not
whether the new Act expressly keeps alive old
rights and liabilities but whether it manifests an
intention to destroy them. We cannot therefore
subscribe to the broad proposition that Section 6 of
the General 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 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 required 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…..If we 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
100
Page 101 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.”
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.
52The 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 intention 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.
53Section 6 of the General Clauses Act provides as follows :
101
Page 102 “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
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment
as aforesaid”.
54Section 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 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
102
Page 103 General Clauses Act. What then is the touch-stone on which this question
should be resolved?
55In State of Orissa v. Bhupendra Kumar Bose
52
, elections to a
municipality were set aside by the High Court on a defect in the publication of
the electoral roll. The Governor of Orissa promulgated an ordinance by which
the elections were validated together with the electoral rolls. A Bill was moved in
the state legislature for enacting a law in terms of the provisions of the
ordinance but was defeated by a majority of votes. The State of Orissa filed an
appeal before this Court 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 of 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
52
(1962) Supp. (2) SCR 380
103
Page 104 limitation imposed by Article 213(2)(a). The Constitution Bench relied upon
three English judgments: Wicks v. Director of Public Prosecutions
53
; Warren
v. Windle
54
; and Steavenson v. Oliver
55
.
Having adverted to these English decisions, the Constitution Bench held thus :
“21…..In our opinion, what the effect of the
expiration of a temporary Act would be must
depend upon the nature of the right or obligation
resulting from the provisions of the temporary Act
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 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.”
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
53
(1947) A.C. 362
54
(1803) 3 East 205, 211-212 : 102 E.R. (K.B.) 578
55
151 E.R. 1024, 1026-1027
104
Page 105 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.
56This reasoning was followed by a Constitution Bench in T Venkata
Reddy v. State of Andhra Pradesh
56
. 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 the Constitution says
that the Ordinance-making power is legislative
power and an Ordinance shall have the same force
as an Act, an Ordinance should be clothed with all
the attributes of an Act of Legislature carrying with
it all its incidents, immunities and limitations under
the Constitution.” (Id at p. 211)
This Court held that an ordinance is not rendered void at its commencement
merely because it has been disapproved by the legislature :
“19…..It is seen that Article 213 of the Constitution
does not say that the Ordinance shall be void from
the commencement on the State Legislature
disapproving it. It says that it shall cease to
operate. It only means that it should be treated as
being effective till it ceases to operate on the
56
(1985) 3 SCC 198
105
Page 106 happening of the events mentioned in clause (2) of
Article 213.” (Id at p. 214)
The abolition of the posts of part-time village officer was held to be an
established fact. If the legislature intended to bring back the post as it existed
before the promulgation of the ordinance, the court held that a law would have
to be enacted by the state legislature :
“20. We do not, however, mean to say here that
Parliament or the State Legislature is powerless to
bring into existence the same state of affairs as
they existed before an Ordinance was passed
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)
57The 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
temporary law to provide that the rights or the liabilities which are created
106
Page 107 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 temporary 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 T Venkata 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
107
Page 108 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 of legislation 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.
58What 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 an act of the legislature
while the second is that it “shall cease to operate” 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 Article 213. Moreover the
expression “shall have the same force and effect” is succeeded by the
expression “but every such ordinance..” shall be subject to what is stated in
sub-clauses(a) and (b). The pre-conditions for a valid exercise of the power to
promulgate as well as the conditions subsequent to promulgation are both
108
Page 109 part of a composite scheme. Both sets of conditions have to be fulfilled for an
ordinance to have the protection of the ‘same force and effect’ clause. Once the
deeming fiction operates, its consequence is that during its tenure, an
ordinance shall operate in the same manner as an act of the legislature. What
is the consequence of an ordinance ceasing to operate by virtue of the
provisions of Article 213(2)(a)? There are two competing constructions which
fall for consideration. The expression “shall cease to operate” can on the one
hand to be construed to mean that with effect from the date on which six weeks
have expired after the reassembling of the legislature or upon the disapproval
of the ordinance, it would cease to operate from that date. ‘Cease’ to operate in
this sense would mean that with effect from that date, the ordinance would
prospectively have no operation. The ordinance is not void at its inception. The
second meaning which can be considered for interpretation is that the
expression “shall cease to operate” will mean that all legal consequences that
arose during the tenure of the ordinance would stand obliterated. According to
the second construction, which is wider than the first, the consequence of an
ordinance having ceased to operate would relate back to the validity of an
ordinance.
59Now, one of the considerations that must be borne in mind is that Article
213 has not made a specific provision for the saving of rights, 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,
109
Page 110 when it so intended, the Constitution has made express provisions for the
saving of rights or liabilities which arise under 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. Article 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(1A) 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”.
110
Page 111 60The 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(1) 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.
61Similarly, a presidential proclamation under Article 356(1)(b) may declare
that the powers of the legislature of the state shall be exercisable by or under
the authority of Parliament. Every such 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
Parliament. 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 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.
111
Page 112 62Article 249 enables Parliament to 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 and voting that it is necessary or
expedient in the national interest that Parliament should make laws on a subject
in the state list. Similarly, under Article 250, Parliament is empowered, while a
proclamation of emergency is in operation, to make laws with respect to any
matter in the state list. Article 249(3) and Article 250(2) however stipulate that
the law enacted by Parliament shall cease to have effect on the expiration of six
months of the resolution. However, both Article 249(3) and Article 250(2)
contain a savings clause as respects things done or omitted to be done before
the expiration of the period. Such a saving has been rendered necessary
because Parliament has, in pursuance of a resolution under Article 249, or
under Article 250 during a proclamation of emergency, enacted a law on a
matter in the State List (which Parliament is not otherwise competent to enact).
Once the law ceases to have effect, the framers considered it necessary to
introduce a saving as respects things done under it. This was necessary
because a law lacking in legislative competence would be void, but for Articles
249 and 250.
63In S R Bommai v. Union of India
57
, 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
57
(1994) 3 SCC 1
112
Page 113 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 executive”. In the earlier decision in State of Rajasthan v.
Union of India
58
, 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 S R 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) 1 SCR 1] 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
58
(1977) 3 SCC 592
113
Page 114 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
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)
114
Page 115 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.
64The view which was adopted by this Court in State of Rajasthan was
reflected in the majority decision of Justices Y V Chandrachud, Untwalia and
Fazl 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
115
Page 116 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 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 S R 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.
65The 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
59
, Justice Fazl Ali in the course of his
dissenting opinion noticed the use of these phrases in the following
observations :
59
(1951) SCR 228
116
Page 117 “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
have effect” (see Articles 358 and 372), “shall be
inoperative”, 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 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.”
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
117
Page 118 phrases – ‘cease to operate’ (in clause 2) and ‘void’ in (clause 3) one cannot be
read to have the same meaning as the other.
66An 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.
67Significantly, the expression “cease to operate” in Article 213(2)(a)
applies both to an ordinance whose tenure expires after the prescribed period
as well as in relation to an ordinance which is disapproved by the legislature.
The content of the expression cannot 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 will enure beyond the life of the ordinance. In
deciding this issue, the court must adopt an interpretation which furthers the
basic constitutional premise of legislative control over ordinances. The
preservation of this constitutional value is necessary for parliamentary
democracy to survive on the sure foundation of the rule of law 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 of law. 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.
118
Page 119 The court’s interpretation of the power to frame ordinances, which originates in
the executive arm of government, cannot be oblivious to the basic notion that
the primary form of law 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.
68We 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
119
Page 120 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 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 S R 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 of legislative power.
69The 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 D P
Wadhwa, being a bench of two learned judges, was confronted with the binding
120
Page 121 effect of the decisions of the two Constitution Benches in Bhupendra Kumar
Bose and T Venkata 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
commentator on the subject states), that the learned judge “is willing to engage
in some form of heightened scrutiny”
60
. Yet, the three-fold test of irreversibility,
impracticality or public interest may, if broadly 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 a 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,
60
Shubhankar Dam (Supra) (Id at page 151)
121
Page 122 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
71Article 213(2)(a) requires an ordinance to be laid before the state
legislature. A similar requirement is contained in Article 123(2)(a). Neither Article
122
Page 123 123 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 Subhash C Kashyap, in his work titled “Parliamentary
Procedure – the law, privileges, practice and precedents
61
.” Rule 71 which the
author extracts is as follows :
“Rule71. 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.
72The Rules of Procedure and Conduct of Business in the Bihar Vidhan
Sabha
62
contain a provision in Rule 140 which indicates that copies of the
61
Universal Law Publishing Co. Pvt. Ltd (Id at page 16,17)
62
10
th
Edition Bihar Vidhan Sabha Patna
123
Page 124 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.
73The importance of tabling an ordinance before the legislature is that it
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 of legislation. Promulgated at a
time when the legislature is not in session, the constitutional process involved
postulates an 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.
74The 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
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Page 125 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 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. In Quarry Owners’ Association v. State of Bihar
63
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,
63
(2000) 8 SCC 655
125
Page 126 especially when such authority is even otherwise
answerable to such legislature.” (Id at p. 689)
75The 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 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. 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
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Page 127 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 of law. Once an ordinance has been placed before the legislature, the
constitutional fiction by which it has the same force and effect as a law enacted
would come into being and relate back to the promulgation of the ordinance. In
the absence of compliance with the mandatory constitutional requirement of
laying before the legislature, the constitutional fiction would not come into
existence. In the present case, none of the ordinances promulgated by the
Governor of Bihar were placed before the state legislature. This constituted a
fraud on the constitutional power. Constitutionally, none of the ordinances had
any force and effect. The noticeable pattern was to avoid the legislature and to
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Page 128 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
76The judgment of the Constitution Bench in D C 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.”
77The 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
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Page 129 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 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.
78The 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 of placing
any of the ordinances before the legislature. Justice Wadhwa 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
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Page 130 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.
79We have already adduced reasons earlier for overruling the enduring
rights theory based on the analogy of a 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 of Bihar 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 together constitute a fraud on
constitutional power.
N Conclusion
80In 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
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Page 131 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 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 Council of
Ministers which owes collective responsibility to the legislature;
(vi) 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
131
Page 132 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);
(vii)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;
(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 D C 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
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Page 133 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 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 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;
(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
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Page 134 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 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.
81We 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 binding judgment 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
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Page 135 been paid during the tenure of the ordinances in pursuance of the directions
contained in the judgment of the High Court.
82The reference is answered in these terms.
83We acknowledge and value the able assistance rendered by learned
counsel who appeared before the court :
Shri Salman Khurshid, Shri Rakesh Dwivedi, Shri Amarendra Saran, Shri
Mukesh Giri, Shri C U Singh, senior advocates and Shri Ranjit Kumar, Solicitor
General. Their industry and research have provided us valuable inputs.
............................................... J
[S.A. BOBDE]
............................................... J
[ADARSH KUMAR GOEL]
............................................... J
[UDAY UMESH LALIT]
............................................... J
[DR D Y CHANDRACHUD]
............................................... J
[L. NAGESWARA RAO]
New Delhi
January 02, 2017
135
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