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these three Ordinances may have been repealed, the employees would be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
