India: Re-Promulgation Of Ordinance Is A Fraud On The Constitution – Analysis In Light Of Krishna Kumar Singh V. State Of Bihar

Last Updated: 10 October 2018
Article by Tanuka De

 In the case of, Krishna Kumar Singh v State of Bihar1, seven judge constitution bench of the Hon'ble Supreme Court of India had held that re-promulgation of ordinance is a fraud on the Constitution. The Court also held that the satisfaction of the President of India under Article 123 and of the Governor under Article 213 while issuing an Ordinance is not immune from judicial review.2

Recently this case has been cited in few Supreme Court and High Courts' cases including the case of Government of NCT of Delhi vs. Union of India (UOI) and Ors.3, Gunwantlal Godawat vs. Union of India4, Prayar Gopalakrishnan and Ors. vs. State of Kerala and Ors.5, Anand Narayanrao Jammu vs. State of Maharashtra and Ors.6, Hemraj Marotrao Shingne and Ors. vs. Principal Secretary, Department of Cooperation Marketing and Textile and Ors.7

WHAT IS ORDINANCE?

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. 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. Further, Ordinance so made will hold good only for a duration of six weeks from the reassembly of Parliament. Article 213 mandates near identical terms with respect to the ordinances on subject of State authority. It is understood that the authority to issue ordinances shall be used only to meet the emergent demands arising out of extraordinary situations.

ARTICLE 213 OF CONSTITUTION OF INDIA

Governor of an Indian state draws ordinance making power from Article 213 of the Constitution of India. This Article empowers the Governor to promulgate Ordinance, during recess of legislature, if circumstances exist which render it necessary for him to take immediate action. To issue an Ordinance, the Governor must be satisfied with the circumstances that make it necessary for him to take immediate action. Governor cannot promulgate an ordinance if: The Ordinance has the provisions which of embodied in a bill would require President's sanction.

  • The Ordinance has the provisions which the governor would reserve as a Bill containing them for the President's sanction.
  • If an act of the State Legislature has the same provisions that would be invalid without the assent of the President.

All Ordinances promulgated by the Governor in the State have the same effect and force as an Act of Legislature of the State. The Ordinance must be laid before the State Legislature when it reassembles and it must be upheld by the State legislature, failure to which the Ordinance would be invalid.

ARTICLE 123 OF CONSTITUTION OF INDIA

According to Article 123, The President can promulgate Ordinances during the recess of Parliament if:

  • at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require;
  • An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
  • may be withdrawn at any time by the President Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

If and so far as an Ordinance under this Article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void. In the case referred above, the majority of the ruling that was laid by Hon'ble Mr. Justice D. Y. Chandrachud, firmly stated the fact that placing the Ordinance before the legislature is mandatory.

THE SALIENT FEATURES OF THE JUDGMENT DICTATED BY HON'BLE MR. JUSTICE CHANDRACHUD WERE:

  • The power which has been conferred is conditional to Article 133 of the Constitution. The power can only be exercised when the legislation is not in session and is subject to the satisfaction of the President.
  • 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 (ii) it will cease to operate six weeks after the legislature has resembled 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 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 Council of Ministers which owes collective responsibility to the legislature.
  • Laying an Ordinance before the Parliament or State Legislature is a mandatory constitutional obligation. It is mandatory because the legislature has to determine:
  • The need for, validity of and expediency to promulgate an ordinance.
  • Whether the Ordinance ought to be approved or disapproved.
  • Whether an Act incorporating the provisions of the Ordinance should be enacted.
  • 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 in the judgment of the Constitution Bench in D.C. Wadhwa and Ors. v. State of Bihar and Ors.8.
  • 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 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 135 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. The framers having used the expressions "ceased to operate" and "void' separately in the same provision, they cannot convey the same meaning.
  • The theory of enduring right that was laid in the judgment in State of Orissa v. Bhupendra Kumar Bose9 and followed in T. Venkata Reddy and Ors. v. State of Andhra Pradesh10 by the Constitution Bench is based on the analogy of a temporary enactment. The judgments are no longer good law in view.
  • 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 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.
  • According to Hon'ble Mr. Justice Justice Chandrachud and other judges, 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 136 public interests and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance has assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief.

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 scrutinize 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.

A DISSENTING OPINION WAS GIVEN BY HON'BLE MR. JUSTICE MADAN B. LOKUR

  • There is no mandatory requirement that an Ordinance should be laid before the Legislative Assembly.
  • 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.
  • 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.

A SHORT ANALYSIS

This judgment widens the scope of judicial review of Ordinances. It basically promotes more transparency in the functioning of the same and the Court can exercise the powers of judicial review and verify the actions undertaken by both President and the Governor so as to arrive at the satisfaction that an Ordinance was necessary or not. It can also be observed that repromulgation is fundamentally at odds with the principal of parliamentary supremacy. Article 123 of the Constitution spells out requirements before resorting to the extraordinary measure of promulgating an ordinance. It quite convincingly appears that the government has converted the emergent power under Article 123 into a source of parallel law-making that is unethical to the scheme of the Constitution. Ordinances are seldom brought before the legislature but are reissued again and again, violating the spirit of the Constitution. The court's verdict has to be seen as placing a vital check on what has until now been a power rampantly abused by the executive. Therefore, in short, negligence/failure of governments, at the Centre as well as states, to place ordinances before Parliament and State legislatures would in itself be constituted as a fraud on the Constitution and the same cannot be allowed in the good spirit of law and order.

Footnotes

1 2017 (2) SCJ 136

2 ¶ 118, supra, pg. 52

3 MANU/SC/0680/2018

4 MANU/SC/1476/2017

5 MANU/KE/0153/2018

6 MANU/MH/2071/2018

7 MANU/MH/0056/2018

8 AIR1987SC579

9 AIR 1962 SC 945

10 AIR 1985 SC 724

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