Case Analysis: Krishna Kumar Singh & Anr. vs State of Bihar & Ors. (2017) 3 Supreme Court Cases (SCC) 1.

Author: Sheel Singhal.

CITATION

(2017) 3 Supreme Court Cases (SCC) 1.

NAMES OF PARTIES

Appellant: Krishna Kumar Singh and Another;

Respondent: State of Bihar and others.

JUDGES

Justice Dr T.S. Thakur, C.J. (Concurring);

Justice Madan B: Lokur (Dissenting);

Justice S.A. Bobde (Majority);

Justice Adarsh Kumar Goel (Majority);

Justice Uday U. Lalit (Majority);

Justice Dr D.Y. Chandrachud (Majority);

Justice L. Mageswara Rao (Majority).

INTRODUCTION

Ordinance is a law-making power which is conferred upon the President of India, who on the recommendation of Union ministers can promulgate ordinance which has same legal force as of any law but a prior condition before promulgating ordinances is that the house should not be in session. The most important feature or object of ordinances is that when the nation requires any immediate action or law in critical situation and if the parliament is not in session, then ordinances come to rescue.

It is important to note that an ordinance will cease to operate if it is not passed within 6 weeks from beginning of new parliament session. Article – 123 and 213 of the Constitution deals with ordinance making power. Article 123 of the Constitution of India gives the power and authority to the President of India to issue an ordinance only when both the Houses of Parliament are not in session.((M.R. Madhavan, The ordinance route is bad, repromulgation worse, THE HINDU, April 20,2021 , https://www.thehindu.com/opinion/op-ed/the-ordinance-route-is-bad-repromulgation-worse/article34361919.ece ( Visited on September 02,2022).)) In addition, it states that any ordinance can have the same force and effect as a statute of Parliament only if it is laid before both the houses of the Parliament. It is important to note that with respect to power of Governor in promulgating ordinance is given under article 213.

An ordinance has to be promulgated keeping in mind the dissemination of powers as given in the concurrent, union and state list and further the ordinance has power or the ability to be promulgated on any issue on which Parliament has control on. The most important aim and objective of writing this article is to understand the main issue of what happens to the actions which were made under the ordinance but later that ordinance ceases to operate. The clarification regarding the same was given in the landmark judgement of Krishna Kumar Singh case. So before analyzing the questions in the case, first let us delve into the facts of the case

FACTS

The Bihar Government in 1989 passed an ordinance named the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control).((The Bihar Non-Government Secondary School (Taking over Management and Control) 1989.)) This ordinance stated that around total of 429 Sanskrit schools which are private controlled will be now taken over by the Government. Due, to which large amounts of employees and teacher who were part of these private schools, in a shift were transferred to became the employee of the state government. This ordinance was re-promulgated many a times and no law could ever be passed related to this ordinance as it was not presented in the state legislature, not even a single time. Therefore, for the payment of salary and other dues, the teacher and employees filled petition before the High court of Patna.

The main question which the Patna High Court dealt was with regarding whether the re-promulgation of ordnances seven time was illegal or unconstitutional. In this judgement, the Hight court while dismissing the petition held that successive ordinance promulgation without any cogent reason is not valid in the eyes of law1. The Patna High Court relied on the judgement of D.C. Wadhwa v. State of Bihar((D.C. Wadhwa & Ors vs State of Bihar & Ors 1987 AIR 579.)) and held that the basic scheme of constitutionalism is violated by the re-promulgation of ordinance by the Bihar government and thus it is unconstitutional in the eyes of law. The High court also held that 305 schools are genuine which must be paid their salary by the government till 30-04-1992 (last validity of ordinance). Also, now the private school management of schools would be governed in the same manner that prevailed prior to the promulgation of first ordinance.

Against the above order, an appeal was filled in the apex court. The bench (2judge) of the Apex court also held that the basic scheme of constitutionalism is violated by the re-promulgation of ordinance by the Bihar government. The apex court in concurrence held that the entire exercise of promulgating ordinance is a fraud on the power conferred by article 213 of the constitution.((Cottrell, Jill. “Re-Promulgation of Ordinances in India: A Note.” The International and Comparative Law Quarterly, vol. 37, no. 4, 1988, pp. 1044–45. JSTOR, http://www.jstor.org/stable/759870.)) “However, they differed on the validity of the first Ordinance and hence the matter was referred to a 3-judge bench. In 1999, this bench (comprising of 3 judges) further referred it to a 5-judge bench, considering that the matter raised substantial questions related to the Constitution. On 2nd January, 2017, the Apex court (7 Judge Bench) decided the Krishna Kumar case.

ISSUES

1. Whether any rights, duties, obligation created by an Ordinance will exist even after that particular ordinance ceases to operate? 
2. Whether the Bihar government ordinances was legally valid in its nature?
3. Whether Article 123 or 213 makes out mandatory obligation on the part of the executive to present the ordinance in the Parliament and State Legislature respectively?
4. Whether re-promulgation of an Ordinance goes against the basic spirit of constitutionalism?

JUDGMENT

The Apex court in the present case gave a landmark judgement on the issue of whether re-promulgation of ordinance goes against the basic feature of constitutionalism while relying on the judgement of DC Wadhwa v. State of Bihar((D.C. Wadhwa & Ors vs State Of Bihar & Ors 1987 AIR 579.)) held that re-promulgation of ordinances goes against the basic spirit of constitutionalism in the ratio of 5:2 and gave two reason to support above reasoning that-

• The purpose of the power which is given in article 213 and 123 to the Governor and President respectively to issue ordinance is defeated.
• Such re-promulgation by-passes the supreme law-making authority (Legislature).

It is a well-known principle of Indian constitution that article 213 and 123 provides power to President and Governor respectively to promulgate ordinances and the Apex court held that this power of President and Governor is not immune from any kind of judicial review. Also, it is important to note that as the executives are collectively answerable to the Parliament/ State Legislature, this power is in control of legislature. The court categorically held that not placing ordinances before the legislature and instead re-promulgating it is a blatant misuse of the law and also it is subversion of legislative process of law making by the Parliament as well as State Legislature. It is important to note that Justice D.Y. Chandrachud, who authored the majority judgement held that the power of promulgating ordnance which is given to the President and Governor should be used only when the legislature is not in session and also this power is a kind of conditional power.

The judgement made it clear that it is mandatory constitution obligation on the part of the government to lay down ordinance before the legislature, so that the legislature could decide on the following:

1. The need, validity, and expediency to issue the Ordinance;
2. Whether the Ordinance should be approved;
3. Whether a Statute must be enacted in furtherance of the Ordinance.((Cottrell, Jill. “Re-Promulgation of Ordinances in India: A Note.” The International and Comparative Law Quarterly, vol. 37, no. 4, 1988, pp. 1044–45. JSTOR, http://www.jstor.org/stable/759870.))

The judgement stated that all ordinance which are re-promulgated again and again and are not placed before the Legislature are against constitutionalism and therefore the salary which has already been given to the teachers must not to be recovered from them as they are not given the status of government teacher. The important aspect that court addressed is that the power of the President or Governor to promulgate ordinance must not be construed as a law-making body parallel to the legislature and court also delve into the different expressions used in the constitution of India such as repeal, void, cease to have effect and cease to operate and stated that the express ceased to operate and void((Noorani, A. G. “Ordinance Raj.” Economic and Political Weekly, vol. 33, no. 50, 1998, pp. 3173–74. JSTOR, http://www.jstor.org/stable/4407461.)) used separately in the same provisions of Article 123 and 213 is not used to convey the same meaning.

“Another important observation was that any right, privilege, obligation or liability provided by the Ordinance will only survive if it fits within any of the three tests mentioned below:

• the effect of the Ordinance should be irreversible in nature;
• reversing of the consequences of the Ordinance should be impractical;
• a compelling public interest must exist in order to continue the effect of the Ordinance.”

The then Chief Justice of India T.S. Thakur gave a concurring opinion and stated that the interpretation related to the question of Article 123 and 213 which made it obligatory on the government to place the ordinance before the legislature open as of now as there might be some sort of situation in which re-promulgation of ordnance would be necessary without placing it before state legislature or there might be other scenarios which requires deeper deliberation.

On the other hand, Justice Lokur Madan opined that it is not mandatory for an ordinance which is promulgated by President/Governor to be presented before the legislature and also as ordinance has the force of law in real sense, therefore the validity of ordinances cannot be challenged on whether it was laid down before the legislature or not. He also made contrary views to the judgement of Venkata Reddy v. state of A.P((T. Venkata Reddy and Ors. v. State of Andhra Pradesh AIR 1985 SC 724.)) and state of Orissa v. Bhupendra Kumar Bose((State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945.)) and held that enduring right theory cannot be created for a citizen.

In conclusion/relief, the court stated that the first three ordinances are valid and their benefit given to the employees till these ordinances ceased to operate are valid and the employee will not get any enduring right from these ordinances. The court also held that the directions given by the High court with regard to the salary and interest are valid.

ANALYSIS

Legislative Debates and deliberation form the most important aspect of any legislature. These important deliberations in many ways improves the quality of democratic decisions. It mainly makes government accountable to opposition to make laws with correct assertions as well as reasoning. These debates between opposition and government helps in making law based on critical reasoning.

But many a times, we see that government debases this constitutional scheme of deliberation through the route of ordinances and re-promulgating it again and again but the landmark judgement of Krishna Kumar clearly solved this issue by opening the judicial scope to review the ordinances which will help in promoting transparency as well as in improving the functionality of ordinances. The judgment in correct sense has enabled the courts with the power of judicial review of President and Governor power to promulgate ordinances.

Another positive implication which this judgement provides is that it categorically held that the principle of parliamentary supremacy stands to be at odd with the idea of re-promulgation of ordinances without tabling it before executive. It makes executive supreme over the parliament. Many a times, it seems through re-promulgation of ordinance that the government has made the ordinance route a parallel law making which is very much opposite to the scheme as envisaged in the constitution but the Krishna Kumar judgement rightly invalidated this parallel law-making scheme.

The Court has provided sufficient reasoning in creating a check on the power of executive by this judgement on the executive as earlier the practice of re-promulgating of ordinance was done time to time by the executives which basically violates the basic principle of Constitution.

Though the overall majority judgement written by Justice Chandrachud is logical and well versed but the opinion related to the public interest test which is to be applied to judge whether the rights, privileges, obligation etc. should prevail or not when the ordinance ceases to exists in terms of its effect on public interest is bit problematic as in future there might be some instances where an ordinance would create rights, duties and obligation which would clearly be irrecoverable, even though the public interest would be to cease those rights. Even though it is a lacuna left in the judgement but it would not weaken the judgement as a whole.

The reasoning given in the case of Krishna Kumar was largely based on the Apex court judgement of D.C. Wadhwa v. State of Bihar((D.C. Wadhwa & Ors vs State of Bihar & Ors 1987 AIR 579.)) which held that re-promulgation of ordinances without placing it before the legislature is clearly violative of the basic spirit of constitutionalism. By upholding the D.C. Wadhwa case the Supreme Court has opined that Parliamentary supremacy will never cease over the executive and helped in allowing court to review the decisions of executive in issuing ordinances, which is a welcoming step by the judiciary.

CONCLUSION

While carefully analyzing the issue of promulgation of ordinance by the Governor/President under article 213 and 123 of the Indian Constitution respectively, the 7-judge bench of the Apex Court delivered a landmark judgement which in my opinion was very much needed. The Court prevented the re-promulgation of ordinance system which goes against the basic spirit of constitution and condemned the Ordinance Raj which was subverting the legislative or parliamentary supremacy.

In summarizing the whole judgement it could be said that the majority judgement which was delivered by Justice Chandrachud held Parliament/State Legislature is a competent body before which placing of ordinance is mandatory , on the other hand, the then Chief Justice in his partly concurring and partly dissenting judgement held that this question of interpretation is open and Justice Lokur in his dissenting opinion held that placing ordinance before the legislature is not a mandatory condition and it is directory in nature. Though the lacuna is still left with reference to public interest test which is to be used to judge the effect of rights, obligation after the ordinance ceases to exists but this would not weaken the judgment. Therefore, the author opines, any point to remove the route of ordinance as a whole as it has its benefits too but it is equally important that this right should be provided to executive with a variety of barriers (checks and balances) so that the misuse of ordinances could be prevented and the Krishna Kumar case has made right way forward towards it.