# KRISHNA KUMAR SINGH & ANR v. STATE OF BIHAR & ORS

- **Citation:** [2017] 5 S.C.R. 160
- **Court:** Supreme Court of India
- **Decided:** 2017-01-01
- **Case number:** Civil Appeal No. 5875of1994
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-kumar-singh-anr-v-state-of-bihar-ors-32118
- **Pages:** 117

## Headnote

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[2017] 5 S.C.R. 160
KRISHNA KUMAR SINGH & ANR
v.
STATE OF BIHAR & ORS.
(Civil Appeal No. 5875of1994)
JANUARY 01, 2017
[T. S.THAKUR, CJI, MADAN B. LOKUR, S. A. BOBDE,
ADARSH KUMAR GOEL, UDAY UMESH LALIT,
DR. D. Y. CHANDRACHUD AND
L. NAGESWARA RAO, JJ.)
Constitution of India:
Art.2 I 3 - Promulgation of Ordinances one after another in
succession but none of them laid before the legislature - In the
instant case, Governor of Bihar promulgated an Ordinance
D providing for taking over of 429 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 -
The first Ordinance was followed by a succession of Ordinances -
None of the Ordinances, which were issued in exercise of the power
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·of the Governor under Art.213 were placed before the state
legislature as mandated - Validi(v of the Ordinances - Held: Every
ordinance at issue 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 Supreme Court in D C Wadhwa were bereft of any legal
effect and consequences -
The ordinances did not create any rights
or confer the status of government employees on the teachers and
other employees of the schools - However, as regard the salaries
paid during .the tenure of the ordinances pursuant to the directions
made in the judgment of the High Court, no recoveries to be made
from any of the employees - Ordinance Raj-Bihar Non-Government
G Sanskrit Schools (Taking Over of Management and Control)
Ordinance, 1989 - Service law.
(Per majority)
H
Art.213 - Promulgation of Ordinances during recess of
legislature - Requirement under - Held: The authority which is
conferred upon the Governor to promulgate Ordinances is
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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
161
conditioned by two requirements - The first is that an Ordinance
A
can be promulgated only when the state legislature is not in session
- 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 Governor is
required to form a satisfaction of the existence of circumstances 'i3
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 - Both these
requirements indicate a constitutional intent to confine the power C
of the Governor to frame Ordinances within clearly mandated limits.
(Per majority)
Art.213(1) - 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
D
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. (Per
majority)
Art.213 - Requirement of laying an Ordinance before the state
legislature is mandatory- 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 Art. 213 is mandatory, emerges from
reading the provision in its entirety. (Per majority)
Art.213 - Tenure of an Ordinance - Though the Constitution
contemplates that an Ordinance shall have the same force and effect
qs a law enacted by the state legislature, this is subject to the
Ordinance being laid before the state l

## Text

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[2017] 5 S.C.R. 160
KRISHNA KUMAR SINGH & ANR
v.
STATE OF BIHAR & ORS.
(Civil Appeal No. 5875of1994)
JANUARY 01, 2017
[T. S.THAKUR, CJI, MADAN B. LOKUR, S. A. BOBDE,
ADARSH KUMAR GOEL, UDAY UMESH LALIT,
DR. D. Y. CHANDRACHUD AND
L. NAGESWARA RAO, JJ.)
Constitution of India:
Art.2 I 3 - Promulgation of Ordinances one after another in
succession but none of them laid before the legislature - In the
instant case, Governor of Bihar promulgated an Ordinance
D providing for taking over of 429 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 -
The first Ordinance was followed by a succession of Ordinances -
None of the Ordinances, which were issued in exercise of the power
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·of the Governor under Art.213 were placed before the state
legislature as mandated - Validi(v of the Ordinances - Held: Every
ordinance at issue 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 Supreme Court in D C Wadhwa were bereft of any legal
effect and consequences -
The ordinances did not create any rights
or confer the status of government employees on the teachers and
other employees of the schools - However, as regard the salaries
paid during .the tenure of the ordinances pursuant to the directions
made in the judgment of the High Court, no recoveries to be made
from any of the employees - Ordinance Raj-Bihar Non-Government
G Sanskrit Schools (Taking Over of Management and Control)
Ordinance, 1989 - Service law.
(Per majority)
H
Art.213 - Promulgation of Ordinances during recess of
legislature - Requirement under - Held: The authority which is
conferred upon the Governor to promulgate Ordinances is
160
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
161
conditioned by two requirements - The first is that an Ordinance
A
can be promulgated only when the state legislature is not in session
- 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 Governor is
required to form a satisfaction of the existence of circumstances 'i3
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 - Both these
requirements indicate a constitutional intent to confine the power C
of the Governor to frame Ordinances within clearly mandated limits.
(Per majority)
Art.213(1) - 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
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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. (Per
majority)
Art.213 - Requirement of laying an Ordinance before the state
legislature is mandatory- 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 Art. 213 is mandatory, emerges from
reading the provision in its entirety. (Per majority)
Art.213 - Tenure of an Ordinance - Though the Constitution
contemplates that an Ordinance shall have the same force and effect
qs 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) - It is 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
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[2017] 5 S.C.R.
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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. (Per majority)
Art.163 - Governor acts on aid and advice of Council of
Ministers - Governor while promulgating an Ordinance does not
B constitute an independent legislature, but acts on the aid and advice
of the Council of Ministers under Art.163- The Council of Ministers
is collectively responsible to the elected legislative body to whom
the government is accountable. (Per majority)
c
Arts.123, 213 - Ordinance making power - Constitutional
control of Parliament and the state legislatures over the Ordinance
making power of the President (under Art.123) and the Governors
(under Art.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
D 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
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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 Art.213(2)(a), a
law has to be enacted by the legislature incorporating its provisions
- 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. (Per majority)
Arts.123, 213 - Significance of placing tabling the Ordinance
- Held: The placement of an Ordinance before the legislature is a
constitutional necessizv; the under~ving 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. (Per majority)
Art.213 -
Failure to lay an Ordinance before the legislature
- Impact of - Held: The failure to lay an Ordinance before the state
legislature constitutes a serious infraction of the constitutional
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
163
obligation imposed by Art.213(2) - Requirement of laying an A
Ordinance before the state legislature is a mandatory obligation
. and is not merely of a directory nature. (Per majority)
Art.213 -
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 - Jn the case of delegated
B
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. (Per majority)
Arts.123, 213 - Presidential/Governor satisfaction - Scope
of - Held: The constitutional power which has been conferred upon
the President under Art. 123 and upon the Governors under Art.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 Art.123) or the Governor (under Art.213) "'that circumstances
exist which render it necessary for him to take immediate action. "
(Per majority)
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Arts.123, 213 - Presidential/Governor satisfaction - Judicial
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review, scope - The satisfaction of the President under Art.123(1)
or of the Governor under Art.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 - Since the
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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 Art.123 or Art.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
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if tbere 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 H
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[2017] 5 S.C.R.
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 on(v 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.
(Per majority)
Arts.I23, 213 - Re-promulgation of an Ordinance -
Constitutionality of - Held: 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.(Per
majority)
Art.213(2)(a) and (b) - Expression "cease to operate" in
Art.2I 3(2)(a) - When attracted - Held: 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. (Per majority)
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Art.213 - Consequence of an ordinance terminating on the
expiry of a period of six weeks or, within that period, on a
disapproval by the legislature - Held: 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
H revival of the state of affairs which existed before the ordinance
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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
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. ·'
was promulgated -
There are two constructions which need to be A
analysed - 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 - Jn
this view, disapproval amounts to an obliteration of the effect of all
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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
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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
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revive the state of affairs as it existed prior to the promulgation of
the ordinance. (Per majority)
Ordinance and temporary enactment - Distinction between -
ls Ordinance a temporary enactment - Held: 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 - An ordinance
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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 ior 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
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competent legislature which has plenary powers to enact a law
cannot be equated with a temporary enactment. (Per majority)
. Art.213 - Cease to operate - Connotation of in the context 'of
Art.213 - Held: The Constitution has in its provisions used different
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A phrases including "repeal", "void", ··cease to have effect" and
"cease to operate" - 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
B particular significance because clause 3 of Art.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
Art.213 - Evidently, when the framers wished to indicate that a
C 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
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to operate' (in clause 2) and 'void' in (clause 3) one cannot be read
to have the same meaning as the other. (Per majority)
Art.213 - Expression "cease to operate"- Connotation of -
Held: The expression "cease to operate" in Art.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
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by the legislature - The content of the expression cannot hence
mean two separate things in relation to the two situations.
(Per
majority)
Power to frame ordinances - Enduring rights theory -
Applicability of - Held: The theory which was accepted in the
F judgment in Bhupendra Kumar Bose 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
G hypothesis that these are of an enduring character -
The enduring
rights theory attributes a degree of permanence to the power to
promulgate ordinances in derogation of parliamentary control and
supremacy - .Doctrines/Principles. (Per majority)
Law making power - Ordinance and subordinate legislation
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- Requirement of an ordinance being laid before the legislature
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
cannot be equated with the laying of subordinate legislation - Held:
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. (Per majority)
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Rights, privileges, obligations and liabilities arisen under an
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ordinance - Effect on, when ordinance ceased to operate - Held:
In determining the issue, the over arching consideration must be
the element of public interest or constitutional necessity - 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 E
irreversibility in that sense are aspects which are subsumed in the
considerations which weigh in the balance while deciding where
public interest lies -
The appropriate test to be applied is the test of
public interest and constitutional necessi(v - This would include
the issue as to whether the consequences which have taken place
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under the Ordinance have assumed an irreversible character - In a
suitable case, it would be open to the court to mould the relief (Per
majority)
Scope of the Ordinance making power - Historical evolution
- England, British India and Constituent Assembly - Discussed.
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(Per majority)
Art.213(2) - It is not mandatory under Art.213(2) 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 conseqlience H
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whatsoever - When an Ordinance is promulgated it is printed in the
Official Gazette and therefore every legislator is aware of its
promulgation - Consequently, even if the Executive does not lay
the Ordinance before the State Legislature or if tlie Secretary of the
Legislative Assembly does not supply a printed copy of the
B Ordinance, a Member of the Legislative Assembly is not helpless -
His right to move a Resolution for disapproving the Ordinance
cannot be taken away by this subterji1ge - 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
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the Ordinance before the Legislative Assembly - 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. (Dissenting view) (Per Madan B.Lokur, J.)
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Art.213 - 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. (Dissenting view) (Per Madan B.Lokur, J.)
Art.213 - 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 first 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, first three Ordinances do not
confer any enduring or irreversible right or benefits on the
G employees - The promulgation of the fourth and subsequent
Ordinances were not adequately justified by the State of Bihar in
spite of a specific challenge by the employees and therefore they
were rightly stntck down by the High Court. (Dissenting view) (Per
Madan B.Lokur, J.)
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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
169
Art.213(2}(a) - Approval of an Ordinance is not postulated A
by Art.213(2}(a) of the Constitution. (Dissenting view) (Per Madan
B.Lokur, J.)
Art.213 - Historical background relating to Ordinances -
Discussed - Government of India, 1935 - ss.88, 90. (Per Madan
B.Lokur, J.)
B
Ordinance - The nature of power invoked for issuing
ordinances does not admit of creation of enduring rights in favour
of those affected by such ordinances - The ordinances issued in
the instant case could not have created any enduring rights in favour
of Sanskrit school teachers particularly when the ordinances c
themselves were a fraud on the Constitution. (Per T. S. Thakur, CJ/)
Art.213 - Repromulgation of ordinances, validity of - None
of them ever placed before the State legislature as required under
Art. 213 (2) - Held: Since the process of issuing the ordinances
and repromulgation thereof was in the nature of a single transaction
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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
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foundation
could remain
unaffected by
the
vice of
unconstitutionality. (Per T. S. Thakur, CJ/)
General Clauses Act: s.6 - Repeal - Scope of - Held: s.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
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(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
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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 - s. 6 of the General Clauses Act protects rights, privileges
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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 s.6 of the General
Clauses Act.
(Per majority)
B
Words and phrases:
Expression ''repeal", "void", 'cease to have effect", "cease
to operate" - Distinction between. (Per majoriM
Expression "cease to operate" - Meaning of (Per majority)
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Expression "disapproval"- Meaning of (Per majority)
Answering the reference, the Court
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HELD: Per Dr. D. Y. Chandrachud. J.: (for himself,
S. A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit and
L. Nageswara Rao, JJ.)
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
G 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
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KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
171
Council of Ministers which owes collective responsibility to the A
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
B
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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 D
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
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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
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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
C . 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
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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. Every one of the ordinances at issue 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 DC Wadhwa
are bereft of any legal effects and consequences. The ordinances
do not create any rights or confer the status of government
employees. However, no recoveries shall be made from any of
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
173
the employees of the salaries which have been paid during the
A
tenure of the ordinances in pursuance of the directions contained
in the judgment of the High Court. [Paras 80, 81] [248-B-H;
249-A-H; 250-A-G]
DC Wadhwa v. State of Bihar (1987) 1 SCC 378:(1987)
1 SCR 798; SR Bommai v. Union of India (1994) 3
SCC 1: [1994] 2 SCR 644; Quarry Owners' Association
v. State of Bihar (2000) 8 SCC 655:(2000] 2 Suppl.
SCR 211 -
relied on.
T Venkata Reddy v. State of Andhra Pradesh (1985) 3
SCC 198 : [1985] 3 SCR 509; State of Orissa v.
Bhupendra Kumar Bose (1962] Suppl. (2) SCR 380 -
disapproved.
Krishna Kumar Singh v. State of Bihar (1998) 5 SCC
643 : (1998] 3 SCR 206; R.K. Garg v. Union of India
(1981) 4 sec 675: [1982] 1 SCR 947; A. K Roy v.
Union of India (1982) 1 SCC 271: [1982] 2 SCR 272;
R C Cooper v. Union of India (1970) 1. SCC 248: [1970)
3 SCR 530; A K Roy v. Union of India (1982) 1 SCC
271 : [1982] 2 SCR 272; Madhav Rao v. Union of India
[1971] 3 SCR 9; State of Rajasthan v. Union of India
[1978] 1 SCR 1; Indra Sawhney v. Union of India
(1992) Supp. (3) SCC 217: [1992) 2 Suppl. SCR 454;
Mahanat Narayan Dessjivaru v. State of Andhra AIR
(1959) AP 471; State of Punjab v. Mohar Singh AIR
(1955) SC 84: [1955] SCR 893; State of Rajasthan v.
Union of India (1977) 3 SCC 592:(1978] 1 SCR 1;
Keshavan Madhava Menon v. State of Bombay [1951)
SCR 228 - referred to.
The Case of Proclamations (1611) 12 Co Rep 74;
Pankina v. Secretmy of State for the Home Department
[2010] 3 WLR 1526;
Wicks v. Director of Public
Prosecutions (1947) A.C. 362; Warren v. Windle (1803)
3 East 205, 211-212 : 102 E.R. (K.B.) 578; Steavenson
v. Oliver 151 E.R. 1024, 1026-1027 - referred to.
P Ramanatha Aiyar, the Major Law Lexicon (IV Edn.
Pg 1053; Justice C K Thakker's Encyclopaedic Law
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Lexicon Ashoka Law House Pg.879; Black's Law
Dictionary Xth Edn. Pg.268; Parliamentary Procedure
- the law, privileges and precedents by Subhash C
Kashyap - referred to.
B
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Per Madan B.Lokur, J. (Partly dissenting)
I. 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. Further, an Ordinance
cannot create an enduring or irreversible right in a citizen. [Paras
1, 2) [251-C-D]
State of Orissa v. Bhupendra Kumar Bose (1962) Suppl.
(2) SCR 380; T Venkata Reddy v. State of Andhra
Pradesh (1985) 3 SCC 198: (1985) 3 SCR 509 -
D
overruled.
2. As far as the re-promulgation of an Ordinance is
concerned, the re-promulgation of an Ordinance by the Governor
of a State is not per sea fraud on the Constitution. There could be
exigencies requiring the re-promulgation of an Ordinance.
E
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. [Para 3) (251-E, F)
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3. Finally, 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 arc 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.
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
175
(Para 4) [252-A, BJ
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4. Promulgation of an Ordinance: 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." B
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. 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,
c
it docs not lead to any conclusion that it has been approved - it D
only means that the Ordinance has not been disapproved by the
State Legislature, nothing more and nothing less. 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. A Proclamation issued under
Article 360 of the Constitution also requires approval under
Article 360(2) of the Constitution. There is therefore a conscious
distinction made in the Constitution between disapproval of an
Ordinance and approval of a Proclamation and this distinction
cannot be glossed over. It is for this reason that only disapproval
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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. The expression of G
disapproval of an Ordinance could be at the instance of any one
Member of the Legislative Assembly in view of Ruic 140 of the
Rules of Procedure and Conduct of Business in the Bihar Vidhan
Sabha. If the State Legislature disapproves an Ordinance by a
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Resolution, it ceases to operate.
[Paras 8-111 [253-C, F-H; 254A-C]
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5. After the promulgation of an Ordinance
5.1. After the promulgation of an Ordinance by the
Governor of a State at the instance of the Executive, the
Constitution visualizes three possible scenarios. Firstly, despite
t«e 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. 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. 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.
[para 12) [254-D-G; 255-A]
5.1.1. First scenario: 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.
[para 14] [255-B-F]
5.1.2. If an Ordinance is not laid before the State
Legislature it docs not become invalid or void.
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
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR
177
the Constitution.