This article is written by Kalhan Safaya.

Background of “Krishna Kumar Singh vs. State of Bihar”

On January 2, 2017, a seven-judge constitutional bench of the Honorable Apex Court ruled the current case. The proceedings centred on the “re-promulgation of Ordinances” and their constitutionality. In the year 1989, the Bihar Government enacted the “The Bihar Non-Government Sanskrit Schools, (Taking Over of Management and Control) Ordinance”. As per the same, the state has taken over 429 private Sanskrit schools. The employment of educators and school personnel were to be shifted to the authority of Bihar resultant of this Legislation (“Ordinance”, precisely). This incepting Ordinance was pursued with a number of other Ordinances, not one of them was introduced to the State Legislature, and no legislation was enacted as a result. A new Ordinance was released as soon as the previous one expired.

Only as a consequence of these Ordinances, the staff and other workers of these institutions started to be Public servants and petitioned the Patna High Court for wages and salaries and other emoluments. The High Court was asked if the seven consecutive re-promulgations of this Ordinance constituted any unlawfulness or statutory malfeasance. The Patna High Court rejected the Writ Petition, citing the judgment in “D.C. Wadhwa and Ors. V. State of Bihar and Ors”.

As a result, a petition was brought in 1998 before a two-judge bench of the Apex Court. The court, which included Justice Ms Sujata Manohar and Justice Mr D P Wadhwa, also ruled that re-promulgation of Ordinances was unlawful and violative of the Indian Constitution. They disagreed on the legality of the first Ordinance, so the case was appealed to a three-judge court. In 1999, this three-judge panel assigned the case to a five-judge panel, citing the fact that it posed significant constitutional concerns. The case was assigned to a wider Bench of seven judges on November 23, 2004.

On 2nd January 2017, the Supreme Court of India’s seven-judge Constitution Bench ruled that the “RE-PROMULGATION OF ORDINANCES” must be taken to be a violation of our Indian Constitution as it undermines parliamentary legislative procedures. This Bench furthermore ruled that:

“The approval and gratification of the President of India, under Article 123, and the Governor, under Article 213, when issuing an Ordinance is not excluded from judicial process and legal challenge.”

Issues raised in the court of law

There were a total of seven issues that constituted the conflict in the case of Krishna Kumar Singh vs State of Bihar:

Key concepts

Before delving further one must be clear of all the concepts which were touched upon in the judgment at hand and they were as follows:

The colloquial comprehension of the word “Ordinance” is:

“Article 123” of the Indian Constitution grants the President of India the competence and capacity to put across an “Ordinance” in the time when all legislative bodies (i.e. Lok Sabha and Rajya Sabha) are not in attendance. Furthermore, the law specifies that every ordinance has identical power & impact just like law by the legislature. Furthermore, the Ordinance shall be effective for 6 weeks after the re-instatement in the legislature. “Article 213” requires almost equivalent terminology for ordinances as the matter rested with the regional powers. It is cemented that this power shall only be employed in dire and extreme circumstances.

“Article 213” of the Indian Constitution grants the governor of an Indian state the authority to issue ordinances. The law enables the Governor to issue an Ordinance while the legislative body is in break-time if situations necessitate urgent comprehension. For the release of an Ordinance, the Governor should happen to be content w.r.t. situations that require him to act immediately. The Governor must not give accent to an ordinance if: “the ordinance contains provisions that, if encapsulated in a bill, would necessitate the President’s approval.”

Ordinances issued by a State Governor have equivalent weightage as a Legislative Action by the Central authority. The Ordinance should be presented to the State Legislature when it reconvenes, and the ratification by the State Legislature is a necessity; otherwise, the Ordinance is null and void.

As per “Article 123”, the President may issue Ordinances in the time of every Parliamentary recess if:

If and to the extent that an Ordinance under this Article makes any provision that the legislature won’t be responsible for enacting under this Constitution, it is null and void. In the aforementioned case, the large proportion of the verdict handed down by Hon’ble Justice D. Y. Chandrachud opined unequivocally that bringing the Ordinance before the legislative body is compulsory.

The two cents of honorable Justice Chandrachud on “Krishna Kumar Singh vs. State of Bihar”

• The authority granted is dependent on “Article 133” of the Constitution. This power can only be employed during the recess of the legislative bodies and also if it is susceptible to the contentment of the President of India.
• An ordinance perpetuated under “Article 123 or Article 213” is equivalent, in terms of power, to a law passed by the Central legislature but it must (a.) be placed in front of parliament and (b.) quit to function after 6 weeks of the reassembly of the Houses, or sooner if a motion disparaging it, take force. Furthermore, an ordinance might well get discharged.
• If an Ordinance is lawfully promulgated and satisfies the criteria of “Articles 123 and 213”, the constitutional narrative of being equivalent to a statute passed by the central legislative body comes into use.
• The power to make Ordinances does not transform the President or Governor into a complementary link of policy-making or an autonomous regulatory power.
• The authority to promulgate ordinances is subject to legislative control, in accordance with the principle of legislative supremacy. The President or, in some cases, the Governor acts with the assistance and advice of the Council of Ministers, which is collectively responsible to the legislature.
• It is a constitutional requirement to present an Ordinance to the Parliament or State Legislature. It is required because the legislature must determine: the necessity, legality, and pragmatism of enacting an ordinance.
• Whether the Ordinance should be accepted or rejected.
• Whether an Act should be enacted to incorporate the regulations of the Ordinance.
• Refusing to meet with the prerequisite of presenting an ordinance to the legislature is a significant constitutional violation and mistreatment of the legislative process.
• As stated in the Constitution Bench’s decision in “D.C. Wadhwa and others v. State of Bihar and Ors.” Re-promulgation of ordinances is a violation of the Constitution and repression of democratic legislative processes. 
• The Constitution is using terms like “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 358 and 372”). (“Articles 123, 213 and 352”). All of these gestures convey a distinct meaning. The phrase “cease to operate” in “Articles 123 and 213” does not imply that the ordinance is declared void ab initio upon its expiration of a six-week period following the remounting of the legislature or the passage of an agreement of derision. “Articles 123 and 213” each contain a specific provision outlining the conditions under which an Ordinance is void. An Ordinance is void if it makes a provision that Parliament would not be responsible for enacting (“Article 123(3)”) or if it makes a provision that would not be legitimate if enacted in a state legislature act assented to by the Governor. Because the founders used the terms “ceased to operate” and “void” individually in the same provision, they cannot have the same interpretation.
• The Constitution Bench’s theory of enduring right, which was laid out in the judgement in “State of Orissa v. Bhupendra Kumar Bose” and accompanied in “T. Venkata Reddy and Ors. v. State of Andhra Pradesh”, is connected to the idea of a provisional ratification. In the eyes of the law, the decisions are no longer valid.
• “Articles 123 and 213” make no express provision for the preservation of freedoms, advantages, responsibilities, and liabilities arising from an Ordinance that has stopped functioning. However, such laws are expressly stated in other articles of the Constitution, such as “Articles 249(3), 250(2), 357(2), 358, and 359(1A)”. This is not definitive, and the concern is basically one of development; of giving meaning to the ‘force and effect’ clause whilst also establishing legislative supremacy and the rule of law.
• As per Hon’ble Justice Chandrachud and other jury members, the challenge of whether liberties, entitlements, commitments, and obligations would thrive an Ordinance that no longer exists must be defined as an issue of development. The procedure of 136 interests of the public and constitutional requirement is the suitable one to use. This would include the question of whether the repercussions of the Ordinance have carried on an irrevocable identity. It would be up to the court in an appropriate case to shape the relaxation.

The contentment of the President under “Article 123” and the Governor under “Article 213” is not impervious from judicial review, especially since the forty-fourth amendment to the Constitution resulted in the removal of clause 4 in both articles. The test is to see if the contentment is founded on any published information. In exercising its judicial review authority, the court will not evaluate the adequacy or efficacy of the content. The court will consider whether the contentment in a specific case constituted malpractice on power or was motivated by an ambiguous intent. In other words, judicial review would look into whether there was any gratification at all.

The debate about using ordinances in place of an instrument for making legislations predates the implementation of the Constitution. Admittedly, when the clauses integrating these prerogatives were contemplated in the Constituent Assembly, B.R. Ambedkar recommended all issues about executive being granted “ordinance-making authority” were merely a matter of “language”. 

If Dr. Ambedkar had been able to watch the gradual erosion of the constitutionality of ordinance-formulating prowess by current authorities at both the Central and State levels, he might have changed his mind. It is now clear that the issue with the use of ordinances extends far beyond mere sophistry. Indeed, as Shubhankar Dam, a law professor and author of a latest book on ordinances, has asserted, it goes to the very heart of the power’s establishment. This is because the provisions granting the strength to create ordinances are an anomaly in our constitutional structure in many aspects.

The goal of the creators’ was always to establish a division of powers among the three major branches of government. The legislative branch (Central Parliament, and State Assemblies) is entrusted with the principal job of making legislation; the executive is assigned with administering the nation by enacting these policies; and the judiciary analyses the statutes, checks to see if they are being obeyed, and, where necessary, reports them to guarantee that they are constitutionally compatible. 

The executive’s authority to release ordinances thus runs counter to this overall chain of command, as it serves neither as a test nor a contrast on the authority exercised by the other government branches.

Even from the plain provisions of the Law, it is evident that the agency to issue ordinances is to be used only to reach the evolving requirements of unusual situations. “Article 123”, which describes the Government executive’s ordinance-making authority, states that when both Houses of Parliament are not in a conference if the President is happy and content 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,” he may promulgate such Ordinance as the situations occur to him to require. It also states that if an ordinance is laid before both Houses, it has the same effect as a law of Legislature. Furthermore, the ordinance will “cease to operate six weeks after the reassembly of Parliament,” or if Parliament moves amendments disdainful of the ordinance before the end of the period. In remarkably similar contexts, Article 213 of the Constitution grants the Governor the authority to pass ordinances on subjects of State authority, acting on the advice of his State’s Cabinet of Ministers.

Ordinances, on the other hand, have rarely been used as an exclusively extraordinary method in practise. Lately, the Central Executive approved an ordinance in 2014, which it consequently promulgated three times without authorization, to ratify substantial benefits assured by Parliament’s land acquisition law enacted in 2013. Their clear goal was to avoid the constitutional specifications of debate and contemplation, as well as to surmount the statistical deficiencies that they confronted in the Rajya Sabha. As a result, the government was essentially using its ordinance-making power as a substitute legislative tool. An analogous abuse of power had been brought before the Supreme Court for consideration in Krishna Kumar Singh.

On the first point, Justice Chandrachud went above and beyond existing precedent to retain that not only promulgated ordinances, but also ordinances approved in the first instance, are subject to judicial review. He relied on the revered “S.R. Bommai case (1994)”, in which a nine-judge bench of the jury ruled that the judicial system could overturn a decree of emergency when the executive used the power to secure an ambiguous objective.

Justice Chandrachud held that an analogous requirement of evaluation could be implemented to ordinances as well; in these cases, he held, the court will not inquire into the appropriateness or sustainability of the substance before the President or the Governor, but it can scrutinise to see if the executive has committed fraud or an abuse of power. In this case, the court reversed two of its previous decisions and threw out what it called a theory of enduring rights. It governed that an ordinance differs from provisional laws in that it does not automatically create rights and liabilities that extend beyond its period of installation.

~ Wrote Justice Chandrachud.

While Justice Chandrachud is accurate in governing that an ordinance will not immediately have long-term effects, a test of public interest may prove problematic in the future. There may be instances where an ordinance produces outputs that are clearly irrecoverable, even after national good requesting that they be reversed. However, when successive benches are confronted with such inquiries, these problems may be straightened out. 

In the end, the court’s decision must be viewed as a necessary check on what has previously been an executive power that has been rampantly abused. As inconvenient as a parliamentary discourse can be, the legislative body is an essential pillar of our democracy. 

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