Judges: T.S. Thakur, C.J.I., Madan B. Lokur, S.A. Bobde, Adarsh Kumar Goel, U.U. Lalit, Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ.

Facts:

256 Ordinances were promulgated and re-promulgated by the Governor of Bihar in between 1967 and 1981. These Ordinances were kept alive for long periods, going upto fourteen years. In D.C. Wadhwa v. State of Bihar MANU/SC/0072/1986, the Constitution Bench of Supreme Court 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.

Three years after the decision, the Governor of Bihar promulgated the first of the Ordinances which is in issue in the present case, providing for the 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 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.

Writ proceedings were initiated before the High Court by the staff of the Sanskrit schools for the payment of salaries. An appeal against the decision of the High Court was filed before a Bench of two judges of Supreme Court in Krishna Kumar Singh v. State of Bihar, MANU/SC/0358/1998. The Court held 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.

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.

When the case came before a Bench of three judges, it was referred to a Bench of five judges on the ground that it raised substantial questions relating to the Constitution. The proceedings therein resulted in present reference to a larger Bench of seven Judges.

Issues:

(i) Whether the obligation to place an ordinance before the legislature in terms of Articles 213 and 123 of Constitution 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?

(ii) 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?

(iii) Whether ordinances issued by the Government in exercise of its powers under Articles 213 and 123 of Constitution can create enduring rights in favour of individuals affected thereby?

(iv) Whether re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes?

Laws:

Constitution of India, 1950 - Article 123 - Specifies power of President to promulgate Ordinances during recess of Legislature.

Constitution of India, 1950 - Article 213 - Specifies power of Governor to promulgate Ordinances during recess of Legislature.

Analysis:

Ordinance making power - Nature and effect of

(i) Power which has been conferred upon the President under Article 123 and the Governor under Article 213 of Constitution is legislative in character.

(ii) The power is conditional in nature. 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 issuing an Ordinance.

(iii) The second requirement is that the President / 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 President / Governor are 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.

Ordinance - Nature and effect of

(i) An Ordinance which is promulgated under Articles 123 or 213 of Constitution has the same force and effect as a law enacted by the legislature.

(ii) However, it must be laid before the legislature and it will cease to operate six weeks after the legislature has reassembled or, even earlier, if a resolution disapproving it is passed. The expression "shall be laid" used in both the Articles is a positive mandate which brooks no exceptions.

(iii) Moreover, an Ordinance may also be withdrawn. The constitutional fiction of 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 of Constitution.

Ordinance - Life of

(i) 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".

(ii) 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.

(iii) 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.

(iv) Article 174 of Constitution 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.

(iv) The tenure of an Ordinance is hence brought to an end -

1. By the Ordinance ceasing to operate upon the expiry of a period of six weeks of the reassembly of the legislature; or
2. 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
3. In the event of the Ordinance being withdrawn by the Governor.

Ordinance making power - Whether puts President or Governor into a parallel source of law making

(i) The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

(ii) 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.

Laying Ordinance before legislature - Whether mandatory

(i) The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government.

(ii) 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.

(iii) The legislature has before it 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) of Constitution, a law has to be enacted by the legislature incorporating its provisions.

(iv) Laying of the ordinance before the legislature is mandatory because the legislature has to determine -

1. The need for, validity of and expediency to promulgate an ordinance.
2. Whether the Ordinance ought to be approved or disapproved.
3. Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments).

Failure in laying Ordinance before the legislature - Effect of

(i) 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.

(ii) 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.

Re-promulgation of Ordinances - Whether fraud on the Constitution and against judgment of the Constitution Bench in D C Wadhwa

(i) 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.

(ii) 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.

(iii) Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances have been conferred upon the President and the Governors.

(iv) 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.

(v) The judgment of the Constitution Bench in D.C. Wadhwa v. State of Bihar MANU/SC/0072/1986 held that the re-promulgation of ordinances by the State of Bihar constituted a fraud on the Constitution. 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.

Ordinance ceasing to operate - Meaning and effect of

(i) Article 213(2)(a) of Constitution 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.

(ii) 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).

(iii) Each of these expressions has a distinct connotation. The expression "cease to operate" in Articles 123 and 213 of Constitution 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.

(iv) Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void.

(v) 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)).

(vi) The framers having used the expressions "cease to operate" and "void" separately in the same provision, they cannot convey the same meaning.

Theory of enduring rights - Judgment in Bhupendra Kumar Bose and T Venkata Reddy

(i) 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.

(ii) In State of Orissa v. Bhupendra Kumar Bose MANU/SC/0220/1961, the court held that the lapsing of the ordinance would not result in the revival of the invalidity of the election which the ordinance had validated.

(iii) This reasoning was followed by a Constitution Bench in T. Venkata Reddy v. State of Andhra Pradesh MANU/SC/0372/1985, which held that an ordinance is not rendered void at its commencement merely because it has been disapproved by the legislature.

(iv) The basic premise of the decision in Bhupendra Kumar Bose and T. Venkata Reddy is that the effects of an ordinance can be evaluated on the basis of the same yardstick that applies to 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.

Ordinance ceasing to operate - Whether rights, privileges, obligations and liabilities would survive

(i) No express provision has been made in Article 123 and Article 213 of Constitution for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate.

(ii) 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.

(iii) 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.

Satisfaction of the President / Governor in promulgating Ordinance - Whether immune to judicial review

(i) The satisfaction of the President under Article 123 and of the Governor under Article 213 of Constitution is not immune from judicial review particularly after the amendment brought about by the 44th amendment to the Constitution by the deletion of Clause 4 in both the articles.

(ii) 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.

(iii) 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.

(iv) 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.

T. S. Thakur, CJI (Concurring)

(i) Repeated re-promulgation 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.

(ii) The nature of power invoked for issuing ordinances does not admit of creation of enduring rights in favour of those affected by such ordinances.

Madan Lokur, J. (Partly dissenting)

(i) It is not mandatory under Article 213(2) of Constitution to lay an Ordinance before the Legislative Assembly of the State Legislature. Failure to do so will not result in the Ordinance not having the force and effect as an enacted law or being of no consequence whatsoever.

(ii) 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 merely means that the Ordinance has not been disapproved by the State Legislature, nothing more and nothing less.

(iii) 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.

(iv) Re-promulgation of an Ordinance by the Governor of a State is not per se fraud on the Constitution. However, re-promulgation of an Ordinance ought not to be a mechanical exercise. 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.

(v) 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.

(vi) An Ordinance cannot create an enduring or irreversible right in a citizen. An Ordinance cannot, unlike a temporary Act, provide for any savings clause or contingency. 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..

Conclusions:

(i) The power which has been conferred upon the President under Article 123 and the Governor under Article 213, though conditional, is legislative in character.

(ii) An Ordinance which is promulgated under Articles 123 or 213 of Constitution has the same force and effect as a law enacted by the legislature.

(iii) Constitutional fiction of 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 of Constitution.

(iv) The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

(v) The power to promulgate ordinances is subject to legislative control. The President / Governor acts on the aid and advice of the Council of Ministers which owes collective responsibility to the legislature.

(vi) Laying of the ordinance before the legislature is mandatory.

(vii) 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.

(viii) Article 213(2)(a) of Constitution 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.

(ix) 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 do not lay down the correct position of law in relation to an Ordinance.

(x) No express provision has been made in Articles 123 and 213 of Constitution for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate.

(xi) 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.

(xii) The satisfaction of the President under Article 123 and of the Governor under Article 213 of Constitution is not immune from judicial review.

Important Precedents:

(i) D.C. Wadhwa and Ors. v. State of Bihar and Ors. MANU/SC/0072/1986

(ii) State of Orissa v. Bhupendra Kumar Bose MANU/SC/0220/1961

(iii) T. Venkata Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0372/1985