2017 Supreme(SC) 10

SUPREME COURT OF INDIA
T.S. THAKUR, CJI., S.A. BOBDE, ADARSH KUMAR GOEL, UDAY UMESH LALIT, MADAN B.LOKUR, D.Y. CHANDRACHUD, L. NAGESWARA RAO, JJ.
Krishna Kumar Singh & Anr. - Appellants
Versus
State of Bihar & Ors. - Respondents
Civil Appeal Nos. 5875, 5876-5890 of 1994; 3533-3595 of 1995 With Writ Petition (C) No. 580 of 1995

IMPORTANT POINTS (Majority view)
(i) The power under Article 123 and Article 213 is legislative in character and conditional in nature.
(ii) 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six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed unless withdrawn.
(iii) The power to promulgate ordinances is subject to legislative control.
(iv) The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. 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;
(v) Re-promulgation of ordinances is a fraud on the Constitution.
(vi) There is a basic difference between an ordinance and a temporary enactment.
(vii) The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review.
(viii) 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.

Headnote:

Per Madan B. Lokur, J. (Dissenting)

       (a) Constitution of India – Article 213(2) – Ordinance – Laying of before Legislature – Not mandatory – Failure to lay an Ordinance before the State Legislature – Does not take away its force and effect as a law enacted – Does not render it of no consequence. (Para 1)

       (b) Constitution of India – Article 213 – An Ordinance cannot create an enduring or irreversible right in a citizen. (Para 2)

       1962 Supp (2) SCR 380; (1985) 3 SCC 198 – Overruled

       (c) Constitution of India – Article 213 – Re-promulgation of Ordinance – Not a fraud on the Constitution. (Para 3)

       (d) Interpretation of statute – Ordinance – Ordinances re-promulgated – Repealed – In absence of challenge validity of the Ordinances must be assumed – Held, employees would be entitled to the benefits under them till they ceased to operate. (Para 4)

       (e) Constitution of India – Article 213(1) – Eight Ordinances promulgated – None laid before the Legislative Houses – If an Ordinance is not disapproved, it does not lead to any conclusion that it has been approved – Approval of an Ordinance not postulated. (Para 9, 10)

       (f) Constitution of India – Article 213(2)(a) – Effect of not laying an Ordinance before state legislature – Ordinance will cease to operate on expiry of six weeks after reassembly of the legislature – It is not mandatory to lay an Ordinance before the legislature – Ordinance does not become null and void by not laying it before the legislature – Article 213(2) cannot be construed to mean that if the Ordinance is not so laid, it will not have the force and effect of a law. (Para 14, 15, 16, 19)

       (g) Constitution of India – Article 213(3) – Ordinance not void for not laying it before legislature – Ordinance being void (Article 213(3)) and ceasing to be operative (Article 123(2)) – Distinction – Action taken under a void Ordinance would be void – On the other hand, action taken under an Ordinance before it ceases to operate would be valid. (Para 18)

       (h) Constitution of India – Article 213 – Ordinance not laid before legislature – Ant member of Legislative Assembly can move a resolution to disapprove the Ordinance even if it is not published in official gazette or copy thereof not supplied to him under the rules of Business – Members’ right cannot be taken away by simply not laying the Ordinance the Legislative assembly. (Para 21)

       (i) Constitution of India – Article 213(2)(b) – Executive may advise Governor to withdraw an Ordinance anytime before it is laid before the legislature – Shows that laying of Ordinance before legislature is not mandatory. (Para 22)

       (j) Constitution of India – Article 213(2)(a) and (b) – Ordinance laid before legislature – No one moving resolution for disapproval or the legislature rejecting the resolution for disapproval – Ordinance would run its course and cease to operate by afflux of time – Legislature accepting resolution for disapproval – Ordinance would cease to operate thereafter or may be replaced by a Bill. (Para 27)

       1962 Supp (2) SCR 380 – Relied upon

       MANU/OR/0014/1960 – Referred

       (k) Constitution of India – Article 213(2)(a) and (b) – 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. (Para 30)

       (l) Constitution of India – Article 213(2)(a) – Laying of Ordinance before Legislative Assembly on its reassembly not mandatorily required – 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) – Control of Executive over an Ordinance is to the extent of its withdrawal under Article 213(2)(b), rest of the control is with the State Legislature. (Para 30)

       (m) Constitution of India – Article 213(2)(a) and (b) – Ordinance – Constitutionally transient – It is not even a temporary Act of the Legislature – Cannot provide for savings clause or contingency – Ensduring rights theory not applicable to Ordinance – Neither any pending action or transaction nor any concluded action or transaction can survive beyond the date of expiry of an Ordinance. (Para 32, 41, 49, 50)

       MANU/OR/0014/1960; (1951) SCR 621; (1803) 3 East 205; 102 E.R. (KB) 578; 151 E.R. 1024; [1947] AC 362 – Referred

       (n) Constitution of India – Article 213(2)(a) – Ordinance cannot have a saving clause – Hence, concluded actions and transactions under an Ordinance do not continue beyond the life of the Ordinance. (Para 59)

       (1951) SCR 621; MANU/OR/0014/1960 – Referred

       (o) Constitution of India – Article 213(2) – An Ordinance cannot, on its own terms, create a right or a liability of an enduring or irreversible nature – Theory of ‘enduring nature’ or ‘irreversible effect’ cannot be incorporated in an Ordinance. (Para 64, 67)

       MANU/OR/0014/1960; (1985) 3 SCC 198; (2016) 8 SCC 1 – Referred

       (p) Constitution of India – Article 213(2)(a) and (b) – Re-promulgation of Ordinance – Every re-promulgation of an Ordinance is not prohibited – First to third re-promulgation not challenged – No justification forthcoming in support of fourth and subsequent re-promulgations, specifically challenged by employees – Fourth and subsequent re-promulgations struck down as invalid. (Para 68, 69)

       (1987) 1 SCC 378 – Referred

       Per T.S. Thakur, CJI (Concurring)

       (q) Constitution of India – Article 213(2) – Successive re-promulgation of Ordinances – Government of the time persistently avoiding placement of the ordinances before the legislature – Declared fraud on the Constitution – All Ordinances, starting with Ordinance 32 of 1989 and ending with Ordinance 2 of 1992, held unconstitutional. (Para 3)

       (1987) 1 SCC 378; (1962) Supp. 2 SCR 380; (1985) 3 SCC 198 – Referred

       (r) Constitution of India – Article 213 – Nature of power under Article 213 does not permit creation of enduring rights in favour of those affected by such ordinances – The ordinances could not have created any enduring rights in favour of Sanskrit school – However, payments received by teachers under the Ordinances directed not to be recovered. (Para 4, 5)

       (s) Constitution of India – Articles 213(2) and 123(2) – The question whether placing the ordinance before the legislature is mandatory and whether non-placement of the ordinances will per se render it unconstitutional – Left open. (Para 6)

       Per D.Y. Chandrachud, J. (Majority view)

       (t) Constitution of India – Article 213(2)(a) – Seven Ordinances promulgated in succession – No Ordinance placed before Legislature – All lapsing be efflux of time – Expression “shall be laid” in Article 213(2)(a) – A positive mandate – Ordinance having same force and effect as a law enacted by the state legislature, 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) – Legislative control over Ordinance making power – Failure to lay Ordinance before state legislature constituting a serious infraction of constitutional obligation. (Para 8, 29, 30, 31, 32)

       (1987) 1 SCC 378; (1998) 5 SCC 643; 1962 (Supp.2) SCR 380; (1985) 3 SCC 198; (1969) 1 SCR 478; (1994) 3 SCC 1; [2010] 3 WLR 1526; (1981) 4 SCC 675; (1982) 1 SCC 271 – Referred

       (u) Constitution of India – Articles 123 and 213 – Ordinances shall have same force and effect as a law enacted by the legislature – Subject to conditions stipulated Article 213(2)(a) and (b) – Limited duration which can be curtailed, and laying before state legislature – Can be promulgated only when legislature is not in session – That too, in extraordinary situations demanding immediate promulgation of law – Further, satisfaction of the President or the Governor “that circumstances exist which render it necessary for him to take immediate action” is mandatory – This satisfaction, in turn, being amenable to judicial review. (Para 35, 36, 39, 40)

       (1970) 1 SCC 248; (1982) 1 SCC 271; (1971) 3 SCR 9; (1994) 3 SCC 1 – Relied upon

       (1978) 1 SCR 1; (1992) Supp. (3) SCC 217 – Referred

       (v) Constitution of India – Articles 123 and 213 – Power to frame ordinances – In deviation of normal mode of legislation – Subject to the control of the legislature over the executive – Re-promulgation – Fundamentally at odds with Articles 123 and 213 – Constitutionally impermissible. (Para 42, 43, 44)

       (1987) 1 SCC 378 – Referred

       (x) Constitution of India – Article 213(2)(a) – Expression “cease to operate” – Ordinance lapsing by efflux of time – Not a repeal – Section 6, General Clauses Act, 1897 – Ordinance cannot be equated with temporary enactment. (Para 57)

       AIR 1955 SC 84 – Relied upon

       AIR 1959 AP 471 – Cited with approval

       (1947) A.C. 362; (1803) 3 East 205, 211-212 : 102 E.R. (K.B.) 578; 151 E.R. 1024 – Referred

       (1962) Supp. (2) SCR 380; (1985) 3 SCC 198 – Distinguished

       (y) Constitution of India – Article 213(2) – Expressions “shall have the same force and effect” as an act of the legislature and it “shall cease to operate” by efflux of tine – Article 213, unlike Articles 352, 358 and 359, not making specific provision for saving of rights, privileges, obligations or liabilities arising under an ordinance – An ordinance which has ceased to operate is not void –During its tenure it has the same force and effect as a law enacted by the legislature – But the rights created or benefits available will not enure beyond its life – Except in cases involving grave elements of public interest or constitutional necessity demonstrated by clear and cogent material. (Para 59, 66, 70)

       (1994) 3 SCC 1; (1977) 3 SCC 592; (1994) 3 SCC 1; (1951) SCR 228 – Referred

       1962 Supp (2) SCR 380; (1985) 3 SCC 198 – Distinguished

       (z) Article 213(2)(a) and Article 123(2)(a) r/w Rule 140, Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha – Laying of Ordinance before legislature – Failure to place an ordinance before the legislature constitutes a serious infraction of a constitutional obligation of the executive – Requirement of merely laying subordinate legislation before the legislature is directory – But where a disapproval of subordinate legislation is contemplated, such a requirement is mandatory – Provision of ‘cease to operate’ – Founded on fundamental requirement of an ordinance being placed before the legislature – Ordinance not placed before legislature at all – Cannot have the same force and effect as a law enacted – Would be of no consequence whatsoever – Re-promulgating and not placing the Ordinance before the legislature is a serious abuse of the constitutional process. (Para 74, 75)

       (2000) 8 SCC 655 – Relied upon

       (aa) Article 213 – Re-promulgation of Ordinance – (1987) 1 SCC 378 holding in 1986 that re-promulgation of Ordinance would be a colourable exercise of power – Instantly, no reason or justification to continue with a chain of ordinances – None of the ordinances laid before legislature – All ordinances forming a part of one composite scheme by which the Governor of Bihar promulgated and re-promulgated ordinances – The first ordinance cannot be segregated from the subsequent ones – Held, each of the Ordinances constitute a fraud on constitutional power. (Para 77, 79)

       (1987) 1 SCC 378 – Relied upon

       Facts of the case:

       This case relates to seven successive re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance, 1989.

       Finding of the Court:

       Reference answered.