Judgments

KRISHNA KUMAR SINGH VS STATE OF BIHAR : CASE SUMMARY

The Supreme Court in Krishna Kumar Singh Vs. State of Bihar (2017) 3 SCC 1 reiterated that re-promulgation of ordinance without laying the same before the Legislature is fraud on Constitution. Ordinances promulgated by President or Governor are not immune from judicial review.

FACTS OF THE CASE

The Governor of Bihar promulgated ordinance titled “The Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance, 1989”   on 18th December, 1989 whereby management and control of non-government  Sanskrit Schools were taken over by State Government for improvement, better organization and development of Sanskrit education in State of Bihar. The services of teaching and non-teaching employees, who have been appointed against sanctioned post against in accordance with the prescribed standard stood transferred to the State Government.

Subsequent to that this ordinance was promulgated several times. None of the ordinance was laid before Legislature. Each of the ordinances lapses by efflux of time, six weeks after the convening of the session of Legislative Assembly. When previous ordinance ceased to exist, a fresh Ordinance was promulgated when Legislative Assembly was not in session. The Legislative Assembly had no occasion to consider when any of the ordinances should be approved or disapproved.  The last Ordinance lapsed on 30th April, 1992.

The High Court held that ordinances which were re-promulgated were ultra vires and Petitioners derived no rights to continue in legal service of State.

The matter reached to the Supreme Court. Justice Sujata Manohar and Justice D. P. Wadhwa agreed that Ordinances promulgated after the first Ordinance was ultra virus but  there was difference of opinion on validity of the First Ordinance. While Justice D.P. Wadhwa was of the view that First Ordinance was valid,  Justice Sujata Manohar was of the view that all the ordinances were part of chain of promulgation and re-promulgation and constituted fraud on Constitution. The matter was finally referred to the Seven Judge Bench.

FINDINGS OF THE SUPREME COURT

The Supreme Court noted that no ordinance making power is vested in King in England. In India such power has been conferred on the Governor General under Government of India Act, 1935.   Constitution confers power to promulgate Ordinance to the President and the Governor under Article 123 and Article 213 respectively.

The authority to promulgate ordinance is conditioned by two requirements. Firstly, Assembly should not be in session and secondly, the Governor should be satisfied of existence of circumstances necessitating immediate action. Laying of such Ordinance before the Legislative Assembly is mandatory. It ensures legislative control over ordinance. Legislation by Ordinances is not an ordinary source of law making but is intended to meet extraordinary situations of an emergent nature, during the recess of legislature.

The Supreme Court observed that 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 Supreme Court noted that the Supreme Court in R. K. Garg and A. K. Roy has repelled the submission that Ordinance making power is not legislative in nature and character. But ordinances like other laws are subject to limitations i.e.  – (i) fundamental rights contained in Part III, (ii) distribution of legislative powers between the Union and the States, and (iii) express constitutional limitations.

Judicial Review of an Ordinance

The Supreme Court held that satisfaction of the President under Article 123 (1) or Governor under Article 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 to duty to arrive at the satisfaction rests in the President and the Governors, the Court must act with circumspection when the satisfaction under Article 123 or Article 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 if there 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 both of its inherent limitations as well as of the entrustment of the power to 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 only 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.

The Supreme Court observed that re-promulgation of an ordinance is fundamentally at odds with the scheme of Articles 123 and 213. Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of lawmaking authority in a Parliamentary democracy.

Effects on Rights, Privileges and Obligations

The Supreme Court overruled State of Orissa Vs.  Bhupendra Kumar Bose (1962) Supp (2) SCR 380  and T Venkata Reddy Vs. State of Andhra Pradesh (1985) 3 SCC 198  wherein notion of enduring rights  has been accepted which will survive after an ordinance has ceased to operate. The Supreme Court observed that no provisions had been made under Article 123 or Article 213 for saving of rights, privileges and obligations and liabilities which have arisen under an ordinance which has ceased to operate. Whether rights, privileges, obligations and liabilities would survive have to be determined as a matter of construction. The appropriate test 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 suitable cases it would be open for the Court to mould the relief.

Unconstitutionality of First Ordinance

The Supreme Court observed that the basic infirmity is that none of the ordinances, including the first, was laid before the Legislature. There was fundamental breach of a mandatory constitutional requirement. All the ordinances formed part of a one composite scheme by which the Governor of Bihar promulgated and re-promulgated ordinances. That chain or link commenced from the promulgation of the first ordinance. Hence, in the very nature of things it would not be possible to segregate the first ordinance since it forms an intrinsic part of a chain or link of ordinances each of which and which together constitute fraud on the constitutional power.

The Supreme Court declared that every one of the ordinances constituted fraud on constitutional power. These ordinances are bereft of any legal effects and consequences. Ordinances do not create any rights or confer the status of Government employees on the Petitioners. However,  the Supreme court moulded relief to the extent that it directed that no recoveries will be made from any of employees which have been paid during tenure of the ordinance.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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