Supreme Court of India
Krishna Kumar Singh & Anr vs State Of Bihar & Ors on 2 January, 2017
Bench: T.S. Thakur, Madan B. Lokur, S.A. Bobde
The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative in character. The power is conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action;
An Ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn;
The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213;
The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority;
Consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control. The President or, as the case may be, the Governor acts on the aid and advice of the Council of Ministers which owes collective responsibility to the legislature;
The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. Laying of the ordinance before the legislature is mandatory because the legislature has to determine: (a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments);
The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process;
Re-promulgation of ordinances is a fraud on the Constitution and a sub- version of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa;
Article 213(2)(a) provides that an ordinance promulgated under that article shall “cease to operate” six weeks after the reassembling of the legislature or even earlier, if a resolution disapproving it is passed in the legislature. The Constitution has used different expressions such as “repeal” (Articles 252, 254, 357, 372 and 395); “void” (Articles 13, 245, 255 and 276); “cease to have effect” (Articles 358 and 372); and ”cease to operate” (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression “cease to operate” in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void. An ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an act of the legislature of the state assented to by the Governor (Article 213(3)). The framers having used the expressions “cease to operate” and “void” separately in the same provision, they cannot convey the same meaning;
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;
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;
The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief; and 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.
We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power. These ordinances which were never placed before the state legislature and were re-promulgated in violation of the 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 been paid during the tenure of the ordinances in pursuance of the directions contained in the judgment of the High Court.
Supreme Court of India
Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986
Equivalent citations: 1987 AIR 579, 1987 SCR (1) 798
Author: P Bhagwati
Bench: Bhagwati, P.N. (Cj), Misra Rangnath, Oza, G.L. (J), Dutt, M.M. (J), Singh, K.N. (J)
The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisa- ble when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the resolution of the Legislature before the expiry of that period. The power to promulgate an Ordinance is essentially a power to be used to meet an extra-ordinary 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 usurpation 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 the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enact- ing the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued. Of course, there may be a situa- tion where it may not be possible for the Government to introduce and push through in the Legislature a Bill con- taining the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legis- lature in a particular Session may be short, and in that event, the Governor may legitimately find that it is neces- sary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repro- mulgation. It is settled law that a constitutional authority can-
not do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the con- stitutional authority from doing an Act, such provision cannot be allowed to be defeated by adoption of any subter- fuge. That would be clearly a fraud on the constitutional provision. This is precisely what was pointed out by Muk- harji, J. speaking for the Court in K.C. Gajapati Narayan Deo & Ors. v. State of Orissa,  1 SCR 1: "In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is. clothed would not save it from condemnation. The legislature cannot violate the constitu- tional prohibitions by employing an indirect method." So also in P. Vajravelu Mudaliar v. Special Deputy Collec- tor, Madras & Anr.,  1 SCR 614 a Constitution Bench of this Court observed that when it is said that Legislation is a colourable one, what it means is that the Legislature has transgressed its legislative power in a covert or indirect manner, if it adopts a device to outstep the limits of its power. 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 au- thority 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 Execu- tive. Such a strategem would be repugnant to the constitu- tional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arro- gate to itself the law making function of the Legislature. Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the Court is not entitled to examine wheth- er the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an Ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh & Ors. v. Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh v. Com- missioner of Income Tax, AIR 1943 PC 153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper v. Union of India,  3 SCR 530. We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here. It is true that, according to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satis- faction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance suc- cessively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, repromulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the' role of the Legislature in making laws, not for a limited period, but for years together in disregard of the constitu- tional limitations. This is clearly contrary to the consti- tutional scheme and it must be held to be improper and invalid. 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 assembling of the Legisla- ture, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance--Raj in the country.