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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-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.


                                                                  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 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 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.



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.

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 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 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?

(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 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  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 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 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 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.

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 15th 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  23rd  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 1st 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 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 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. 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 1st 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 1st 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 21st February, 1951 (as in the case of  some  petitioners)  could
continue beyond 31st March, 1951 (or 1st  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 1st April, 1951.  This
involved the interpretation and constitutional validity  of  Section  12  of
the Amendment Act which reads as follows:

“For the avoidance of doubt it is hereby declared —

(a) every detention order in force at the  commencement  of  the  Preventive
Detention (Amendment) Act, 1951, shall continue  in  force  and  shall  have
effect as if it had been made under this Act as amended  by  the  Preventive
Detention (Amendment) Act, 1951; 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 31st  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, 4th 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  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, 4th 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].



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
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 1st  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 11th 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 1st 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  1st  of  August,  1815,  and  that  their
privilege as such was of an executory nature, capable of being carried  into
effect after the 1st of August, 1826. ” [Emphasis supplied].



45.   In Wicks the question framed was: Is a man entitled  to  be  acquitted
when he is proved to have broken a Defence Regulation at a  time  when  that
regulation was in operation, because his trial  and  conviction  take  place
after the regulation has expired? While  answering  this  question,  it  was
observed that the question is a pure question of the interpretation of  sub-
section 3 of Section 11 of the Emergency Powers (Defence) Act, 1939. It  was
then held that:

“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
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
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.



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 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.

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 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



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
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.

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.

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  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.

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
                                        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    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 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 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  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 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 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 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 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.

                        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 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  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 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
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
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 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 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 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.”



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).  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 :

Whether the Sanskrit schools stood denationalised upon  the  expiry  of  the
Ordinances;

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;

Whether  the  fourth  Ordinance  was  ultra  vires   Article   14   of   the
Constitution;

Whether the services of the teachers must be regularised and  they ought  to
be treated as government servants; and

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  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.

D     The two differing judgments



Before 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)



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 fourth Ordinance could not be completed as  a
result of an interim stay  and  since  all  the  Ordinances  had  ceased  to
operate and none of them could be considered  as  permanent  in  effect,  no
directions could be given for enforcing them.

12    Justice D P Wadhwa, on the  other  hand  differed  with  the  view  of
Justice Sujata Manohar in regard to the validity  of  the  first  Ordinance.
The learned Judge formulated his reasons in the following propositions :





“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 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 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.
13    Now it is in this background that it would be necessary to  advert  to
the evolution and scope of the Ordinance making power.

E     Historical evolution

E.1     England

14    In the United Kingdom, the prerogative of  the  Monarch  to  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 prescribe or alter the law to be administered by the courts  of
law  in  this  country  is  out  of  harmony  with  the  principles  of  our
Constitution”.”  (emphasis supplied)



15    Tracing the evolution of the King’s power  to  make  proclamations  in
England following the opinion of  Sir  Edward  Coke,  Shubhankar  Dam  in  a
recently published work on the subject[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.2   British India

16    The 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 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
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

17    The 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.

18    After the report of the Union Constitution Committee was submitted  to
the Constituent Assembly, the ordinance making power came up for  discussion
on 23 May 1949. Professor K T Shah observed that however  justified  such  a
power may appear to be it was “a negation of the rule of law”. He  therefore
suggested  that  the  power  should  be  so  structured  as  to  retain   an
extraordinary character to deal with emergent situations :

“…Of course in extraordinary circumstances, as in the case of an  emergency,
the use of extraordinary powers would be both  necessary  and  justified.  I
think that it is important, therefore to  make  it  clear,  in  the  heading
itself that this is an avowedly extraordinary power which may take the  form
of the legislation without our calling its  legislative  power.  Legislative
power the executive head should not have. Or it may even take  the  form  of
an  executive  decree  or   whatever   form   seems   appropriate   in   the
circumstances. The point that I wish to stress is that we must not,  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.

19    H V Kamath moved an amendment that  would  ensure  that  an  ordinance
upon promulgation shall be laid before  both  Houses  of  Parliament  within
four weeks  of  its  promulgation.  This,  he  observed,  was  necessary  to
restrict the ordinance making power “as far as we 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.

20    Pandit H N Kunzru moved an amendment to the effect that the tenure  of
an ordinance should not exceed thirty days from  its  promulgation  (instead
of six weeks from the reassembly of  Parliament).  He  observed  that  there
were several countries in which the executive did not possess  an  ordinance
making power and there was no justification “in the new  circumstances”  for
arming the executive with wide powers of the nature that were  conferred  by
the Government 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 should  be  passed  by  Parliament
after a due consideration of all the circumstances.”

“It  is  therefore  necessary  that  the  legislature  should  be  given  an
opportunity, not merely of considering the situation requiring  the  passing
of an Ordinance, but also the terms of the Ordinance.”



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

22    Sardar Hukam Singh moved an amendment which provided for the need  for
consulting the Council of Ministers :

“It may be said that conventions would grow automatically and the  President
shall have to take the advice of his Ministers. My submission is  that  here
conventions  have  yet  to  grow.   We  are   making   our   President   the
constitutional head and we  are  investing  him  with  powers  which  appear
dictatorial.  Conventions would grow slowly  and  as  this  constitution  is
written and every detail is being considered, why should we leave this  fact
to caprice or whim of any individual, however high he may be? If we  clearly
put down that he is to act on  the  advice  of  his  Ministers,  it  is  not
derogatory to his position.”

23    The amendments which were proposed were opposed by P  S  Deshmukh  and
Dr B R Ambedkar. P  S  Deshmukh  observed  that  the  draft  article  had  a
provision that if and so far  as  an  ordinance  made  any  provision  which
Parliament would not under the Constitution be competent to enact, it  shall
be void. Dr Ambedkar, opposing  the  amendments,  observed  that  while  the
Governor General under Section 43 of the 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
ordinance were not  accepted  on  the  ground  that  Parliament  had  to  be
convened at intervals not exceeding six months. Moreover, he also  clarified
that the President was to act on the  aid  and  advice  of  the  Council  of
Ministers. Draft Article 102 was accordingly approved.
G     The Ordinance making power

25    Chapter 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”.

26    The 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:

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:

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.”



27    The authority which is  conferred  upon  the  Governor  to  promulgate
Ordinances is conditioned  by  two  requirements.   The  first  is  that  an
Ordinance can be promulgated only when  the  state  legislature  is  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
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:

Where a Bill containing the same provisions requires the previous   sanction
of the President, for its introduction into the legislature;

Where a Bill containing the same provisions would  be  deemed  necessary  by
the Governor for being reserved for consideration of the President; and

Where a law enacted by the state legislature containing the same  provisions
would require the assent  of  the  President,  failing  which  it  would  be
invalid.

28    The 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 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
VIIth 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.

29    An Ordinance which is promulgated by the Governor has (as clause 2  of
Article  213  provides)  the  same  force  and  effect  as  an  Act  of  the
legislature of the state assented to by the Governor.  However  -  and  this
is a matter of crucial importance – clause 2 goes on  to  stipulate  in  the
same vein significant constitutional conditions. These  conditions  have  to
be fulfilled before the ‘force and effect’ fiction comes into  being.  These
conditions are prefaced by the expression “but every such  Ordinance”  which
means that the constitutional fiction is subject to what  is  stipulated  in
sub-clauses (a) and (b).  Sub-clause (a) provides that the Ordinance  “shall
be laid before the legislative assembly of the state”  or  before  both  the
Houses in the case of a  bi-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 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 :

By the Ordinance ceasing to operate upon the  expiry  of  a  period  of  six
weeks of the reassembly of the legislature; or

If the Ordinance is disapproved by a resolution of the state legislature  in
which event it ceases to operate on the  resolution  disapproving  it  being
passed; or

In the event of the Ordinance being withdrawn by the Governor.



30    The laying of  an  Ordinance  before  the  legislature  is  mandatory.
Textually, the sense that this is a mandatory  requirement  is  conveyed  by
the  expression  “but  every  such  Ordinance  shall  be  laid  before   the
legislative  assembly”.   Though  the  Constitution  contemplates  that   an
Ordinance shall have the same force and effect  as  a  law  enacted  by  the
state legislature, this is subject to the Ordinance being  laid  before  the
state legislature and coming to an end in  the  manner  stipulated  in  sub-
clauses (a) and (b).

31    Laying of an Ordinance before  the  state  legislature  subserves  the
purpose  of  legislative  control   over   the   Ordinance   making   power.
Legislation by Ordinances is not an ordinary source 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 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 an ordinance; (ii) whether a law  should  be  enacted;  or
(iii) whether the Ordinance should be disapproved.

32     The  failure  to  lay  an  Ordinance  before  the  state  legislature
constitutes a serious infraction of the  constitutional  obligation  imposed
by Article 213(2).  It is upon an Ordinance  being  laid  before  the  House
that it is formally brought to the notice of the  legislature.   Failure  to
lay the Ordinance is a serious infraction because it  may  impact  upon  the
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

33    The  headings  of  both  Chapters  III  and  IV  indicate  that  while
promulgating Ordinances, the President under Article 123  and  the  Governor
under Article 213 exercise legislative  powers.  That  an  Ordinance  “shall
have the same force and effect” as a law enacted by  the  state  legislature
indicates that in terms of its  operation  and  consequence,  the  Ordinance
making power is placed on  the  same  basis  as  law  making  power.   While
enacting legislation the law making body – whether it be Parliament  or  the
state legislatures – are subject to constitutional  limitations  originating
in (i) fundamental rights  contained  in  Part  III;  (ii)  distribution  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  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  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)



34    In 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 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 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

36    The 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.”

37    In 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.

38    The Constitution (Thirty Eighth Amendment) Act, 1975 was brought  into
force on 1 August 1975 during the period  of  the  internal  emergency.  The
amendment introduced,  among  other  things,  two  crucial  provisions  into
Articles 123 and 213 by which the satisfaction of the President or,  as  the
case may be of the Governor, was declared to be final and conclusive and  to
be immune from being questioned “in any court on any ground”.  Clause  4  of
Article 123 provided as follows :

“24….Notwithstanding anything in this Constitution, the satisfaction of  the
President mentioned in clause (1) shall be final and  conclusive  and  shall
not be questioned in any court on any ground.”  (Id at p. 295)



By a similar amendment, clause  4  was  introduced  into  Article  213.  The
effect of the amendment was to grant an immunity from  the  satisfaction  of
the President or the Governor being subjected  to  scrutiny  by  any  court.
This amendment was expressly deleted  by  Section  16  of  the  Forty-fourth
amendment.

39    The effect  of  this  deletion  (of  clause  4)  was  urged  before  a
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)



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 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)



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 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.
1 J   Re-promulgation

41    The judgment in D C Wadhwa adopted as its  rationale,  the  title  and
theme of the work from which the case arose. In  this  section,  we  address
the basis for holding  that  an  act  of  a  constitutional  functionary  is
construed to be a fraud on the Constitution. Why does the repetition  of  an
act  which   is   permissible   initially,   become   a   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

42    The 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 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 the legislative  body  to
decide in its collective wisdom as to whether an ordinance should have  been
made and if so, whether a law should be enacted.

43     A  reasonable  period  is  envisaged  by  the  Constitution  for  the
continuation 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?

44    Re-promulgation of ordinances is constitutionally impermissible  since
it represents an effort  to  overreach  the  legislative  body  which  is  a
primary source of law making authority in  a  parliamentary  democracy.  Re-
promulgation defeats the constitutional scheme under which a  limited  power
to  frame  ordinances  has  been  conferred  upon  the  President  and   the
Governors. The danger of re-promulgation lies in the threat which  it  poses
to the sovereignty of Parliament and the state legislatures which have  been
constituted as primary law givers under the Constitution.  Open  legislative
debate  and  discussion  provides  sunshine  which  separates   secrecy   of
ordinance making from transparent and  accountable  governance  through  law
making.

J.2   D C Wadhwa

45    The 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  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)



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 under an ordinance survive the end of  an
ordinance which has not been adopted into an act of  the  legislature?  That
is the issue to which we turn now.



K     Life beyond death : the conundrum of enduring effects

46    Article 213(2)(a) postulates that an ordinance would cease to  operate
upon the expiry  of  a  period  of  six  weeks  of  the  reassembly  of  the
legislature. The Oxford English dictionary defines  the  expression  “cease”
as[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].

47    In 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]”.

48    The expression “cease to operate” in Article  213(2)(a)  is  attracted
in two situations. The first is where a period  of  six  weeks  has  expired
since the reassembling of the legislature. The second situation is  where  a
resolution has been passed by the legislature disapproving of an  ordinance.
Apart from these two situations that are  contemplated  by  sub-clause  (a),
sub-clause (b) contemplates that an ordinance may be withdrawn at  any  time
by the Governor. Upon its withdrawal the ordinance would  cease  to  operate
as well.

49    The expression “disapproval” is defined in  P  Ramanatha  Aiyar’s  Law
Lexicon (supra) as being sometimes used in the sense of formally refusing  a
sanction or annulling in  consequence  of  the  feeling  of  disapprobation.
Black’s Law Dictionary[50] defines disapproval as “a  negative  decision  or
attitude towards someone or something.”

50    The 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 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.

51    Before the position is examined as a matter  of  first  principle,  it
would be appropriate to examine the precedent emanating from this Court.  In
State of Punjab v. Mohar Singh,[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 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 :

“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  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.

52    The judgment in Mohar Singh drew sustenance  from  the  provisions  of
Section 6 of  the  General  Clauses  Act.  This  Court  held  that  when  an
enactment is repealed, the  consequences  envisaged  in  Section  6  of  the
General Clauses Act will follow unless a contrary  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.

53    Section 6 of the General Clauses Act provides as follows :


“Section 6. Where this Act or any Central Act or regulation made  after  the
commencement of this Act, repeals any enactment hitherto made  or  hereafter
to be made, then, unless a different intention  appears,  the  repeal  shall
not—


* * *


(c) affect any right, privilege, obligation or liability  acquired,  accrued
or incurred under any enactment so repealed; or


(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”.

54    Section 6 in its terms applies only to a repeal. An  ordinance  ceases
to have effect six weeks from the date on which the legislature  reassembles
(or upon the passing  of  a  legislative  resolution  disapproving  it).  An
ordinance which lapses upon the expiry of its tenure of six weeks  from  the
reassembly of  the  legislature  is  not  repealed  as  such.  Repeal  of  a
legislation results from a positive or affirmative act  of  the  legislative
body based on its determination that the law is no longer  required.  Repeal
takes place through legislation. An ordinance lapses (‘ceases  to  operate’)
when it has failed to obtain legislative approval by being converted into  a
duly enacted legislation. Section 6 of  the  General  Clauses  Act  protects
rights, privileges and obligations and continues  liabilities  in  cases  of
repeal of  an  enactment.  The  issue  as  to  whether  rights,  privileges,
obligations and liabilities which have arisen under an ordinance  which  has
ceased to operate would endure is not answered by Section 6 of  the  General
Clauses Act. What then is the touch-stone on which this question  should  be
resolved?

55    In State of  Orissa  v.  Bhupendra  Kumar  Bose[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 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 expiry of the ordinance. Consequently,  the  lapsing  of
the ordinance would not result in the  revival  of  the  invalidity  of  the
election which the ordinance had validated.

56    This reasoning was followed by  a  Constitution  Bench  in  T  Venkata
Reddy v. State of  Andhra  Pradesh[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
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)



57    The basic premise of the decision in Bhupendra Kumar Bose is that  the
effects of an ordinance can be assessed on the basis of the  same  yardstick
that applies to a temporary enactment. There is  a  fundamental  fallacy  in
equating an ordinance with a temporary enactment. A temporary Act is  a  law
which is enacted by the legislature – Parliament or the state legislature  –
in exercise of its plenary powers. While enacting a law, the legislature  is
entitled to define the period during which the law is intended  to  operate.
The legislature decides whether the law will be for a  limited  duration  or
is  to  be  permanent.  Hence,  it  lies  perfectly  within  the  realm  and
competence of the legislature which enacts a temporary law to  provide  that
the rights or the liabilities which are created during  the  tenure  of  the
law will subsist beyond the expiry of its term. The  legislature  which  has
the competence to enact a law unrestricted by tenure  is  equally  competent
to enact a 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 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.

58    What then is  the  effect  upon  rights,  privileges,  obligations  or
liabilities which arise under an ordinance which ceases  to  operate?  There
are two critical expressions in Article 213(2) which bear a close  analysis.
The first is that an ordinance “shall have the same force and effect” as  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  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.

59    Now, 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, 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”.

60    The nature of the power of the President  and  the  structure  of  the
emergency provisions is undoubtedly  different  from  the  ordinance  making
powers under Articles 123 and 213. However, it is significant to  note  that
while making a provision that a parliamentary law  would  cease  to  operate
after a proclamation of emergency is revoked,  the  Constitution  Bench  has
provided for an express saving clause  in  Articles  358(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.

61    Similarly, 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.

62    Article 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.

63    In 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 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  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)



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.

64    The view which was adopted by this Court in  State  of  Rajasthan  was
reflected in the majority decision of Justices  Y  V  Chandrachud,  Untwalia
and 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 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.

65     The  Constitution  has  in  its  provisions  used  different  phrases
including “repeal”, “void”, “cease to have effect” and “cease  to  operate”.
In Keshavan Madhava Menon v. State of Bombay[59], Justice Fazl  Ali  in  the
course of his dissenting opinion noticed the use of  these  phrases  in  the
following observations :

“25. A reference to the Constitution will  show  that  the  framers  thereof
have used the word “repeal” wherever necessary (see Articles 252, 254,  357,
372 and 395). They have also used such  words  as  “invalid”  (see  Articles
245, 255 and 276), “cease to  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 phrases – ‘cease to  operate’  (in
clause 2) and ‘void’ in (clause 3) one cannot  be  read  to  have  the  same
meaning as the other.

66    An  ordinance  which  has  ceased  to  operate  is  not  void.  As  an
instrument, it is not still–born. During the tenure  of  the  ordinance,  it
has the same force and effect as a law enacted by the legislature.

67    Significantly, the expression “cease to operate” in Article  213(2)(a)
applies both to an ordinance  whose  tenure  expires  after  the  prescribed
period as well as in relation to an ordinance which is  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. 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.

68    We have already expressed our reasons for  coming  to  the  conclusion
that the basic foundation upon which the decision of the Constitution  Bench
in Bhupendra Kumar Bose rested is erroneous. The Constitution Bench  equated
an ordinance with a temporary act  enacted  by  the  competent  legislature.
This approach, with  respect,  fails  to  notice  the  critical  distinction
between an enactment of  a  competent  legislature  and  an  ordinance.  The
constitutional power of promulgating ordinances is carefully conditioned  by
the requirements spelt out in Articles 123 and 213. The power is subject  to
limitations both of a durational and supervisory character.  The  intent  of
the framers of the Constitution, as reflected in the  text  of  Article  123
and  Article  213,  is  to  subject  to  the  ordinance  making   power   to
Parliamentary control. The enduring rights theory which was accepted in  the
judgment in Bhupendra Kumar Bose  was  extrapolated  from  the  consequences
emanating from the expiry of a temporary act. That theory cannot be  applied
to the power to frame ordinances. Acceptance of  the  doctrine  of  enduring
rights in the context of an ordinance would lead to a  situation  where  the
exercise of power by the Governor would survive in terms of the creation  of
rights and privileges, obligations and liabilities on  the  hypothesis  that
these are of an enduring character. The legislature  may  not  have  had  an
opportunity to even discuss or  debate  the  ordinance  (where,  as  in  the
present case, none of the ordinances was laid before  the  legislature);  an
ordinance 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.

69    The issue which confronts itself before the court is whether  upon  an
ordinance ceasing to operate, either as a result of its disapproval  by  the
legislature or upon its expiry after the prescribed period of six months  of
the assembling of the legislature, all consequences that have  ensued  would
necessarily stand effaced and obliterated. The judgment  of  Justice  Sujata
Manohar in  the  referring  order  in  the  present  case  adverted  to  the
ambiguity inherent in the expression “permanent effect” and  “rights  of  an
enduring character”. The Bench consisting  of  Justice  Sujata  Manohar  and
Justice D P Wadhwa, being a bench of  two  learned  judges,  was  confronted
with the binding effect of the decisions of the two Constitution Benches  in
Bhupendra Kumar Bose and 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, obligations  and  liabilities  which  will
survive its demise? In our view, in determining the issue  the  over-arching
consideration must be the  element  of  public  interest  or  constitutional
necessity. Ultimately, it is this element of  public  interest  which  would
have  guided  the  court  in  Bhupendra  Kumar  Bose  in  holding  that  the
validation of an election by an  ordinance  should  not  be  set  at  naught
(though the logic adopted by the court was  flawed).  Bhupendra  Kumar  Bose
also raises troubling aspects independently on its  facts  because  in  that
case a Bill which was moved before  the  state  legislature  to  incorporate
provisions similar to those of the ordinance was defeated.  Be  that  as  it
may, in deciding to mould the relief the effort of the  court  would  be  to
determine whether undoing what has  been  done  under  the  ordinance  would
manifestly   be   contrary   to   public   interest.   Impracticality    and
irreversibility in  that  sense  are  aspects  which  are  subsumed  in  the
considerations which weigh  in  the  balance  while  deciding  where  public
interest lies. Impracticality cannot by itself be raised to  an  independent
status because it would then be simple enough for the  executive  to  assert
the supposed complexities in undoing the effects of an ordinance. Since  the
basic constitutional value which is at issue is of  parliamentary  supremacy
and control, the moulding of relief can  be  justified  in  cases  involving
grave elements of public interest or constitutional  necessity  demonstrated
by clear and cogent material.
L     Laying of ordinances before the legislature

71    Article 213(2)(a) requires an ordinance to be laid  before  the  state
legislature. A  similar  requirement  is  contained  in  Article  123(2)(a).
Neither Article 123  nor  Article  213  specifically  provide  for  when  an
ordinance should be laid before the legislature upon its  reassembling.  The
position in relation to Parliament is set out by 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.

72    The 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 ordinance have to be  made  available  to  members  of  the  legislative
assembly “as soon  as  possible”  after  the  Governor  has  promulgated  an
ordinance. Within a period of six  weeks  of  the  legislature  reassembling
(that being the period during which the ordinance will continue to  operate)
any member may move a resolution approving the ordinance with  a  notice  of
three days.

73    The importance of tabling an ordinance before the legislature is  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.

74    The failure to place an ordinance before the  legislature  constitutes
a serious infraction of a constitutional obligation which the executive  has
to discharge by placing the ordinance before the legislature. The laying  of
an  ordinance  facilitates  the  constitutional   process   by   which   the
legislature is enabled to exercise its control. Failure to lay an  ordinance
before the legislature amounts to an abuse  of  the  constitutional  process
and is a serious dereliction of the constitutional obligation. In  the  case
of delegated legislation, Parliamentary or state enactments  may  provide  a
requirement 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, especially when such authority  is  even
otherwise answerable to such legislature.” (Id at p. 689)



75    The requirement of an ordinance  being  laid  before  the  legislature
cannot be equated with the laying of subordinate legislation.  An  ordinance
is made in the exercise of the legislative power of the  Governor  which  is
subordinate to and not a stream which runs parallel  to  the  power  of  law
making which vests in the state legislatures and Parliament. Any  breach  of
the  constitutional  requirement  of  laying   an   ordinance   before   the
legislature has to be looked upon with grave constitutional  disfavour.  The
Constitution uses the express  “cease  to  operate”  in  the  context  of  a
culmination  of  a  duration  of  six  weeks  of  the  reassembling  of  the
legislature or as a result 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 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  obviate  legislative  control.  This  is  a   serious   abuse   of   the
constitutional process. It  will  not  give  rise  to  any  legally  binding
consequences.
M     Re-promulgation in the present case

76    The judgment of the Constitution Bench in 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.”



77    The Constitution Bench carved out an exception where an ordinance  may
have to be re-promulgated by the Governor where it  has  not  been  possible
for Government to introduce and push  through  in  the  legislature  a  Bill
containing the same provisions as an  ordinance  because  of  an  excess  of
legislative business for a  particular  session.  This  exception  has  been
criticized on the ground that however pressing is the  existing  legislative
business, it lies in the discretion of the government to seek  an  extension
of the legislative session for converting an ordinance into an enactment  of
the legislature. Moreover, it has  been  questioned  as  to  whether  a  re-
promoulgated ordinance would meet the basic  constitutional  requirement  of
the  existence  of  circumstances  bearing  upon  the  satisfaction  of  the
Governor on the need to take immediate action. Be that as it may, it is  not
the case of the State of Bihar in  the  present  case  that  there  was  any
reason or justification to continue with a chain of ordinances nor is  there
any  material  before  the  court  to  indicate  exceptional   circumstances
involving a constitutional necessity.

78    The two learned judges (Justice Sujata  Manohar  and  Justice  Wadhwa)
agreed in coming to the conclusion that the  ordinances  which  were  issued
after the first would amount  to  a  fraud  on  constitutional  power.  They
however differed in regard to the validity of the first  ordinance.  Justice
Sujata Manohar held that all the ordinances formed a  part  of  a  chain  of
acts designed to nullify the scheme of Article 213. In this  view,  each  of
the  ordinances  took  colour  from  one   another,   notwithstanding   some
departures in the scheme  of  the  fourth  and  subsequent  ordinances.  The
entire exercise was held to be a fraud on the  power  conferred  by  Article
213 since the executive had no intention 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 accomplished its  purpose.  Justice  Wadhwa  held  that  once  the
property has vested in the state there had  to  be  an  express  legislation
taking away vested rights. The conferment of rights  on  the  employees  was
held to be of an enduring character which could not  be  taken  away  merely
because the ordinance, like a temporary statute ceased to operate.

79    We have already adduced reasons earlier for  overruling  the  enduring
rights theory based on the analogy 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

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

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.

81    We hold and  declare  that  every  one  of  the  ordinances  at  issue
commencing with Ordinance 32 of  1989  and  ending  with  the  last  of  the
ordinances, Ordinance 2  of  1992  constituted  a  fraud  on  constitutional
power.  These  ordinances  which  were  never  placed   before   the   state
legislature and were re-promulgated in violation of the 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.

82    The reference is answered in these terms.

83    We acknowledge and value  the  able  assistance  rendered  by  learned
counsel who appeared before the court :

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
-----------------------
[1]   1962 Supp (2) SCR 380 – Bench of 5 Judges
[2]   (1985) 3 SCC 198 – Bench of 5 Judges
[3]   [4] 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.
[5]   [6] 1962 Supp (2) SCR 380 – Bench of 5 Judges
[7]   [8] OJC No.12 of 1959 decided on 20.03.10959 by the Orissa High Court
[MANU/OR/0014/1960]
[9]   [10] (1951) SCR 621 – Bench of 5 Judges
[11]   (1803) 3 East 205; 102 E.R. (KB) 578
[12]  [13] 151 E.R. 1024
[14]  [15] [1947] AC 362
[16]  [17] (2016) 8 SCC 1 – Bench of 5 Judges
[18]  [19] (1987) 1 SCC 378 – Bench of 5 Judges
[20]  [21]Re-promulgation of Ordinance: A fraud on the Constitution of
India
[22]  [23] (1987) 1 SCC 378
[24]  [25][ Id. at paragraph 8, page 395]
[26]  [27](1998) 5 SCC 643
[28]  [29]Justices SP Bharucha, GB Pattanaik and S RajendraBabu
[30]  [31]Order dated 6 November 1999 in CA 5875 of 1994
[32]  [33]Ordinance 32 of 1989
[34]  [35]The Vidhan Sabha was convened for its 11th session which lasted
from 29 June 1989 to 3 August 1989 after the  Ordinance was promulgated,
the 12th Session of the Vidhan Sabha commenced on 18 January 1990.
[36]  [37]Ordinance 14 of 1990.
[38]  [39]Ordinance 21 of 1990
[40]  [41]Ordinance 10 of 1991
[42]  [43]Ordinance 31 of 1991
[44]  [45]Ordinance 2 of 1992
[46]  [47]Ordinance 21 of 1990
[48]  [49]Ordinance 32 of 1989
[50]  [51]The Referring judgment is reported in (1998) 5 SCC 643: See
paragraph 24 at page 161
[52]  [53](1611) 12 Co Rep 74
[54]  [55][2010] 3 WLR 1526
[56]  [57]Shubhankar Dam – “Presidential Legislation in India The Law and
Practice of Ordinances [Cambridge University Press – page 144 at pages 37,
38]
[58]  [59]Universal Law Publishing New Delhi (2006) Vol.II page 485
[60]  [61](1981) 4 SCC 675
[62]  [63] (Id at pg.687)
[64]  [65](1982) 1 SCC 271
[66]  [67] (id at para 14 page 290)
[68]  [69][ Id at para 16 page 292]
[70]  [71](1970) 1 SCC 248
[72]  [73](1982) 1 SCC 271
[74]  [75](1971) 3 SCR 9
[76]  [77](1978) 1 SCR 1
[78]  [79](1994) 3 SCC 1
[80]  [81] (1992) Supp. (3)  SCC 217
[82]  [83](1987) 1 SCC  378
[84]  [85] The Oxford English Dictionary (II Edition) : Clarendon Press,
pg. 1014
[86]  The Major Law Lexicon (IV Edn. Pg. 1053)
[87]  [88]Ashoka Law House, New Delhi (india) pg. 879
[89]  [90]XthEdn. Pg. 268
[91]  [92]AIR (1959) AP 471
[93]  [94]Id at para 28, pg. 474
[95]

      [96]10thEdn. Pg. 268
[97]  [98]AIR (1955) SC 84
[99]  [100] (1962) Supp. (2) SCR 380
[101] (1947)  A.C. 362
[102] [103](1803) 3 East 205, 211-212 : 102 E.R. (K.B.) 578
[104] [105]151 E.R. 1024, 1026-1027
[106] [107](1985) 3 SCC 198
[108] [109](1994) 3 SCC 1
[110] [111](1977) 3 SCC 592
[112] [113](1951) SCR 228
[114] [115]Shubhankar Dam (Supra) (Id at page 151)
[116] [117]Universal Law Publishing Co. Pvt. Ltd (Id at page 16,17)
[118] [119]10th Edition Bihar Vidhan Sabha Patna
[120] [121](2000) 8 SCC 655


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