Krishna Kumar Singh v State of Bihar (2017)

It is the final word on the ordinance-making power. It settles three things that had been open for thirty years: that the power is legislative but conditional, that laying before the legislature is mandatory and not a formality, and that an ordinance which has lapsed does not automatically leave behind enduring rights and liabilities. It also enforces D. C. Wadhwa by holding that re-promulgation in defiance of it is a fraud on constitutional power.

The Government of Bihar sought to take over 429 Sanskrit schools, transferring the teachers and all employees of the schools to the State Government. In 1989 it issued the first Ordinance, which was followed by five successive Ordinances. On 13 August 1990 the Governor promulgated a fresh Ordinance whose clauses 3 and 4 were materially different from those of the first three.

Clause 3 provided that with effect from the date of enforcement the 429 Sanskrit schools listed in Schedule 1 would vest in the State Government, which would thereafter manage and control them. Clause 4 provided that the staff working in those schools would not be employees of the school unless and until the Government came to a decision regarding their services.

The sequence of ordinances ran from Ordinance 32 of 1989 to Ordinance 2 of 1992. None of them was ever placed before the State Legislature. The teachers claimed the status of government employees.

D. C. Wadhwa v State of Bihar (1987), a Constitution Bench, had already condemned the practice on which this case was built. The petitions there raised the question whether the Governor may go on re-promulgating Ordinances for an indefinite period of time without getting them replaced by Acts, and so take over to himself the power of the legislature to legislate, though the power was conferred on him under Art. 213 only to enable immediate action when the Assembly was not in session. The writ petitions challenged the practice of the State of Bihar in promulgating and re-promulgating Ordinances on a massive scale, and specifically three Ordinances of 1983 — the Bihar Forest Produce (Regulation of Trade) Third Ordinance, the Bihar Intermediate Education Council Third Ordinance and the Bihar Bricks Supply (Control) Third Ordinance. The Court held that repeated promulgation of the same Ordinance is a fraud on the Constitution.

The Court in Krishna Kumar Singh also traced the earlier learning on what survives a lapsed ordinance. A Constitution Bench, in a judgment of Gajendragadkar J, had held that the general rule for a temporary statute is that, absent a special saving, proceedings taken under it terminate when it expires — which is why legislatures adopt savings provisions like s. 6 of the General Clauses Act. But it would not be open to the ordinance-making authority to adopt such a course, because of the limitation imposed by Art. 213(2)(a). The Court there relied on the English decisions in Wicks v Director of Public Prosecutions, Warren v Windle and Steavenson v Oliver, and ruled that since an ordinance is different from legislation, it does not automatically create rights and liabilities that outlast its term of operation — so there is a vital difference between temporary legislation and an ordinance. Chandrachud J (the elder) had added the further test that in deciding what effects survive, the court must examine whether undoing the act would run counter to the public interest.

1. The nature of the power. The power conferred on the President by Art. 123 and on the Governor by Art. 213 is legislative in character. It is conditional: it can be exercised only when the legislature is not in session, and only subject to the satisfaction that circumstances exist which render it necessary to take immediate action.

2. Force and effect, and the two conditions. An ordinance 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 reassembles, or earlier if a resolution disapproving it is passed. It may also be withdrawn.

3. The fiction is conditional. The constitutional fiction attributing to an ordinance the same force and effect as a legislative enactment comes into being only if the ordinance has been validly promulgated and complies with the requirements of Arts. 123 and 213.

4. No parallel legislature. 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 is subject to legislative control.

5. Laying is mandatory. The requirement of laying an ordinance before Parliament or the State Legislature is a mandatory constitutional obligation. It is mandatory because the legislature has to determine (a) the need for, validity of and expediency of promulgating the ordinance; (b) whether it ought to be approved or disapproved; and (c) whether an Act incorporating its provisions should be enacted, with or without amendments. Failure to lay is a serious constitutional infraction and an abuse of the constitutional process.

6. What survives a lapse. Whether rights, privileges, obligations and liabilities survive an ordinance that has ceased to operate must be determined as a matter of construction. The appropriate test is the test of public interest and constitutional necessity, which includes whether the consequences that have taken place under the ordinance have assumed an irreversible character. In a suitable case the court may mould the relief.

7. Judicial review of the satisfaction. The satisfaction of the President under Art. 123 and of the Governor under Art. 213 is not immune from judicial review, particularly after the Forty-fourth Amendment deleted clause (4) of both Articles. The test is whether the satisfaction is based on some relevant material. The court will not determine the sufficiency or adequacy of the material; it will scrutinise whether the satisfaction constitutes a fraud on power or was actuated by an oblique motive — in other words, whether there was no satisfaction at all.

Every one of the ordinances in question, from Ordinance 32 of 1989 to Ordinance 2 of 1992, constituted a fraud on constitutional power. Never having been placed before the State Legislature, and having been re-promulgated in violation of the binding judgment in D. C. Wadhwa, they are bereft of any legal effects and consequences; they create no rights and do not confer the status of government employees.

The Court then moulded the relief: it declared that no recoveries shall be made from any of the employees of the salaries paid during the tenure of the ordinances pursuant to the High Court's directions.

The ordinance-making power is a conditional legislative power subject to legislative control; laying before the legislature is mandatory; re-promulgation without laying is a fraud on constitutional power; an ordinance that ceases to operate does not automatically leave behind enduring rights and liabilities, that question being answered by the test of public interest and constitutional necessity; and the satisfaction of the President or Governor is reviewable for relevance, fraud on power and oblique motive.

• Structure an ordinance answer in four parts: the two conditions for promulgation; the six-week rule and withdrawal; laying as a mandatory obligation; and judicial review of the satisfaction.
• Always pair it with D. C. Wadhwa. Wadhwa supplies the phrase and the principle; Krishna Kumar Singh supplies the consequences, including that ordinances never laid are without legal effect.
• Note the deletion of Arts. 123(4) and 213(4) by the Forty-fourth Amendment. Those clauses had made the satisfaction final and conclusive; their removal is what makes review possible in terms.
• On remedies: the moulding of relief is a useful example of the Court giving effect to a declaration of invalidity while protecting people who acted on the invalid instrument — compare the prospective protection in B. R. Kapur.