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Krishna Kumar Singh vs. State of Bihar (2017)

May 9, 2024

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This article is written by Harshita Agrawal. The article specifies the profound conclusions and landmark rulings delivered by the Honourable Supreme Court in the case of Krishna Kumar Singh vs. State of Bihar (2017). The article also discusses thoroughly the factual background, legal arguments and the complexities of the judgement along with underlying relevant and significant rationales. It also sheds light on the crucial legal principles and the decision of the court thereupon followed by different statements and contentions accustomed to the law.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

The primary law making power under the Indian Constitution is vested with the legislature and not the executive but it is possible that when the legislature is not functioning and the circumstances so arise to take an immediate action and to prevent any harm to the public interest due to legislature’s inability to enact laws to address the urgent situation, the President or the Governor is vested with the power to promulgate ordinances under Article 123 and Article 213 of the Constitution of India respectively. Article 123 of the Constitution of India provides that the President shall have the power to legislate by ordinances at any time when it is not possible to have a parliamentary enactment on the subject, immediately. The Governor’s power to make ordinances as given under Article 213 is similar to the ordinance making power of the President and carries the equivalent legal authority as an enactment by the State Legislature. The President can make an ordinance only when the State Legislature or either of the two Houses is not in session. The ordinance can only be promulgated on the recommendation of union ministers but keeping in mind that the power can be disseminated as mentioned in concurrent, union and state list of the Indian Constitution. This article aims to specify the conditions and incidents which address when any ordinance is made and by the very rule the law is applicable but when it ceases to operate and the law is still valid. The case of Krishna Kumar Singh vs. State of Bihar (2017) clarifies the same.

Details of Krishna Kumar Singh vs. State of Bihar (2017)

Name of the case

Krishna Kumar Singh vs. State of Bihar

Name of the court

Supreme Court

Date of the judgement

January 2, 2017

Citation

(2017) 3 Supreme Court cases (SCC) 1

Bench

J. T.S. Thakur (concurring), J. Madan B. Lokur (dissenting), J. S.A.Bobde (majority), J. Adarsh Kumar Goel (majority), J. Uday U. Lalit (majority), J. D.Y.Chandrachud (majority), J. L. Mageswara Rao (majority)

Authored by

Justice D. Y. Chandrachud

Name of the parties

Appellant: Krishna Kumar Singh

Respondent: State of Bihar

Statutes and laws involved in the case

In the case law of Krishna Kumar Singh vs State of Bihar (2017), several statutes and laws were involved which were contingent upon the particular legal issues addressed in the case. Some of the relevant statutes and laws commonly cited in cases concerning governmental actions, ordinances and constitutional affairs in India include:

Constitution of India: Articles 123, 133, 213 and 356.
Bihar Education Code, 1961

Background of the case

On January 2, 2017 a seven-judge bench of the Hon’ble Supreme Court issued its verdict in the case of Krishna Kumar Singh vs. State of Bihar (2017). The Bihar government enacted the “State of Bihar Non-Government Sanskrit Educational Institutions (Taking Over of Administration and Control) Ordinance” in 1989. The case may have originated from legal challenges questioning the validity or implementation of the ordinance, potentially involving issues concerning constitutional law, administrative law and education policy. The legal proceedings involved arguments and deliberations concerning the constitutional authority of the governor to promulgate ordinances, the procedural requirements for enacting such measures and the implications for the affected educational institutions. The enactment aimed to bring together 429 private Sanskrit educational institutions under state control and to grant Bihar jurisdiction over the hiring of professionals in the school. Subsequent to this initial ordinance, several others were enacted without being presented to the legislative body for approval and thus failing to become law. A new ordinance was immediately implemented once the previous one ceased to operate. Ultimately, the case would have been adjudicated upon by the judiciary, probably entailing proceedings at various court levels, with significant implications for the governance and oversight of private educational institutions in Bihar.

Facts of Krishna Kumar Singh vs. State of Bihar (2017)

The case revolves around the constitutional validity of the re-promulgation of an ordinance. In 1989, the Bihar government passed an ordinance named the Bihar Non-Government Sanskrit School (Taking over of Management and Control) Ordinance (1989). According to this ordinance, the 429 Sanskrit schools which were privately controlled would be now taken over by the Bihar government making the employees and teachers of those schools be transferred to become the government employees and teachers. The first ordinance was followed by a succession of other ordinances and no law could ever be passed related to these ordinances since none of them were presented before the State Legislature.

As a result, they filed a petition before the High Court of Patna for payment of their salaries and other dues on the basis that they were now government employees with effect from coming into force of ordinance no. 32 of 1989 and they continue to be so thereafter since the validity of the ordinance is up to 30th of April 1992.

Judgement of Patna High Court

In this case, the main issue addressed by the Patna High Court was the legal and constitutional validity of the re-promulgation of the ordinances. The petition was dismissed by the High Court establishing the fact that re-promulgation without sufficient justification is not permissible under the law. The reference of the case D.C. Wadhwa vs. State of Bihar (1986) was taken in court and the Patna High Court ruled that the fundamental principles of constitutionalism were not taken seriously. The High Court also held that 305 schools were genuinely entitled to receive salaries till the date of 30 April 1992, the last day of the validity of the ordinance. Additionally, all the management of the private schools would be governed by the same regulatory framework in place prior to the enactment of the promulgation of the first ordinance. However, the drawback of the decision in D. C. Wadhwa is that having spelt out constitutional doctrine, the constitutional bench ended only with a ‘hope and trust’ that law making through re-promulgation of ordinances would not become the norm. This trust has been proven false by the continued issuance of re-promulgated ordinances in subsequent cases. The ultimate direction was to invalidate one ordinance regarding intermediate education which remained in effect. Notably, D. C. Wadhwa did not tackle the legal status of actions taken under ordinances that have expired or have been rejected.

Appeal to the Supreme Court: Two-judges bench

Against the above order, an appeal was filed in the Supreme Court of India. The two-judges bench comprising Justice Sujata V. Manohar and Justice D. P. Wadhwa also held that the re-promulgation of ordinances by the Governor of Bihar clearly violates the constitutionality of Parliament. However, they differed in their opinion regarding the validity of the first ordinance. The initial ordinance herein this case is the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989, also known as Ordinance 32 of 1989 which was enacted with the aim of taking control over 429 out of 651 private Sanskrit schools. This disagreement led to the case being referred to a higher authority resulting in reference to an appeal to a three-judge bench. Referring to the framework in the Constitution, the Constitution Bench observed that what the actual process of ordinance is and the power to promulgate an ordinance that is essentially a power to meet in extraordinary situations and cannot be allowed to be “perverted to serve political ends.” In the verdict given by the divisional bench, it was also mentioned that the Constitution has entrusted the legislative function upon the legislature comprising representatives of the people and if the executive is allowed to perpetuate the provisions of the ordinances through re-promulgations without subjecting it to legislative scrutiny, it would result in infringement of the law by the executives. The executive cannot invoke emergency powers that are applicable only when the parliament is not functioning. Such actions would bluntly undermine the democratic process enshrined in our constitutional framework.

Reference to three-judges bench

However, because of the difference in the opinion of the validity of the first ordinance of the two-judges bench, the matter was referred to a three-judge bench to balance the opinion and after reviewing the mentioned facts and legal validity of the case, it was referred again to the larger bench.

Reference to five-judges bench

In the year 1999, the three-judge bench referred it to the bench of five-judges as it raised substantial questions regarding the constitution and the validity of the re-promulgation of the ordinance as it was re-promulgated many times without placing it before the legislature for the judicial review.

Reference to seven judges bench

On 23rd November 2004, the matter was referred to a seven-judge bench. The judgement which was given on January 2, 2017, by the seven-judge constitution bench of the Hon’ble Supreme Court deemed the promulgation of ordinances as a violation of the constitution and a means to undermine democratic legislative processes. The court also declared that wherever the President under Article 123 and the Governor under Article 213 decide to issue ordinances, they will not be immune from judicial scrutiny.

Issues raised before the seven judges bench

Whether the rights, duties and obligations of the said ordinance exist even after it ceases to operate or not?
Whether an ordinance can be re-promulgated as per the constitution or not?
Whether it is mandatory on the part of the executives to present ordinances before the Parliament for judicial scrutiny or not?
Whether the procedure of re-promulgation was legally valid and followed by the Bihar Governor or not?
Whether the ordinance making power was misused by the executives in any manner or not?
Whether the petitioners were entitled to any legal right after the termination of the ordinance or not?
Whether there is any punishment under the ordinance after it was repealed or not?

Arguments of the parties

The main issue of disagreement between the parties in the mentioned case was the constitutional validity of the promulgation and re-promulgation of ordinances issued by the President or Governor under their respective Articles.

Petitioners

The petitioners in the given case were seeking relief on the basis of the ordinances. They brought to the attention of the Hon’ble Court their right to claim salaries and other benefits from the government, citing their classification as ‘government employees’ conferred on them by the said ordinance.

They also concluded that they were entitled to receive salaries and benefits from the government, starting from the day of the promulgation of the first ordinance and should continue to gain even after the time when the last ordinance ceased to operate.

Respondent

The respondent raised the claim about the validity and consequences of actions taken under an ordinance prior to the date when it is said to be ‘cease to operate’ after being disapproved by the legislative assembly.

The arguments led that since the ordinances were invalid, they were not obliged to pay any salaries or benefits to the teachers and other staff of the said schools.

Laws discussed

Article 123 of the Constitution

It states the power of the President to promulgate ordinances during the recess of Parliament. The President has the power to issue ordinances when Parliament is not functioning to address urgent matters. The ambit of this ordinance-making power of the President is co-extensive with the legislative powers of Parliament, that is to say, it may relate to any subject in respect of which Parliament has the right to legislate and is subject to the same constitutional limitations as legislation by Parliament.

There are certain peculiarities which have to be followed while making of an ordinance:

This power is available to the President only when both the Houses of Parliament are not functioning and are in need of a law enacted by the Parliament.
The power is exercised by the President only with the approval of his union cabinet.
The ordinance must be laid before Parliament when it re-assembles and shall automatically cease to have effect at the expiration of 6 weeks from the date of re-assembly or before resolutions have been passed disapproving the ordinance. The period of six weeks will be counted from the latter date if the Houses reassemble on different dates.
An ordinance may be withdrawn at any time by the President.

In R. K. Garg vs. Union of India (1982) referring to the similar power of the President to promulgate ordinances under Article 123, a constitutional bench of this court said that “upon initial examination, it may seem rather unusual that the authority to enact laws was entrusted by the framers of the constitution to the executive. Traditionally, within a democratic political framework, legislative power is deemed to exclusively belong to the elected representatives of the people and vesting it in the executive through responsibility to the legislature would be undemocratic as it might enable the executive to misuse this authority by securing the passage of an ordinary bill without subjecting it to legislative debate.

Article 133 of the Constitution

As per Article 133 of the Indian Constitution states about appellate jurisdiction of the Supreme Court in appeals from the High Court in regard to civil matters. As per this Article an appeal to the Supreme Court is permissible from any judgement, decree or final order issued in a civil proceeding by a High Court within the territory of India, provided that the High Court certifies under Article 134A:

that the case pertains to a significant question of law of general importance
that in the High Court’s view, the said question warrants adjudication by the Supreme Court

Regardless of the provisions in Article 132, any party appealing to the Supreme Court under clause (1) may assert, among other grounds, that a significant question of law regarding the interpretation of the constitution has been incorrectly adjudicated.

Furthermore, notwithstanding the content of this article, no appeal shall be entertained by the Supreme Court from the judgement, decree, or final order rendered by a single judge of a High Court, unless Parliament stipulates otherwise by law.

An illustration of this Article can be found in the landmark judgement of Ramesh vs Gendalal Motilal Patni (1966) where an appeal by special leave against an order of the Bombay High Court. Under the judgement, a claim officer overruled the allegations stating that although the debt had merged in a decree, it would be considered as a secured debt and the amount was also recoverable. Further, the officer asked for the statement of claim but instead, the respondent preferred an appeal against the main order before the board. The board held that it is not in the hands of the claim officer to determine the nature of the debt and only the civil court can decide this issue.

Article 213 of the Constitution

It states about the power of the governor to promulgate ordinances during the recess of the legislature. If at any time except when the legislative assembly of a State is in session, or where there is a legislative council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.

Provided that the Governor shall not, without instruction from the President, promulgate any such ordinance if-

If a bill containing the same provisions as under the constitution has required the previous section of the President
He would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President
An Act of the State Legislature containing the same provisions would under this constitution have been invalid under having been reserved for the consideration of the President, it had received the assent of the President.

The ordinance must be laid before the State Legislature when it re-assembles and shall automatically cease to have effect at the expiration of six weeks from the date of the re-assembly unless disapproved earlier by that legislature.

A demonstration of the above Article in action can be found in the landmark judgement of A. K. Roy vs Union of India (1982) where it was firmly established under Article 213 that an ordinance is a law and should only be treated like one. The legislative action under our constitution is subject to certain limitations and any law made by the legislature and is incompetent to pass will be subjected to be violated in Part Three of the constitution. The motive of the legislature in passing a statute is beyond the scrutiny of the courts and the court has no right to examine its provision before giving the approval. The need and emergency of a legislative act is only determined by the legislative authority and not by the court. An ordinance passed under Article 123 and Article 213 stands on these bases only. An ordinance cannot be treated as an administrative decision and it also has certain limitations under the Indian Constitution.

Article 356 of the Constitution

Article 356 of the Constitution of India stipulates that in the event of a breakdown of constitutional machinery in states, if the President upon receiving a report from the Governor of a State or otherwise concludes that the State Government cannot function in accordance with the provisions of this Constitution, the President may issue a proclamation-

Assume some or all functions of the State Government, as well as the power vested in or exercisable by the Governor or any state body or authority excluding the State Legislature;
Declare that the powers of the State Legislature will be exercised by or under the authority of the Parliament;
Enact any additional provisions deemed necessary or desirable by the President to achieve the objectives of the proclamation, including the suspension either fully or partially of any constitutional provisions related to state bodies or authorities.

Provided that nothing in this clause shall authorise the President to assume himself any of the powers vested in or exercisable by the High Court, nor does it permit the suspension, either fully or partially of any provision of this constitution pertaining to High Courts. Any such proclamation may be repealed or altered by a subsequent proclamation and each proclamation issued under this Article shall be laid down before every House of Parliament. Unless it is a proclamation revoking a previous one, it will cease to be effective after two months unless approved by resolutions passed in both Houses of Parliament before the said period expires.

Provided that if any such proclamation (not being a proclamation revoking a previous proclamation) is issued while the House of the People is dissolved or if its dissolution occurs during the aforementioned two-month period, and if the Council of States passes a resolution approving the proclamation but no resolution regarding it is passed by House of the People before the expiration of the said period, then the proclamation will cease to be effective thirty days after the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the proclamation has been also passed by the House of the People.

Provided that a proclamation that has been approved shall cease to be effective on the expiry of six months from the date of its issuance unless revoked before then.

Provided that if and so often as a resolution approving the continuance in force of such a proclamation is passed by both Houses of Parliament, the proclamation will continue in effect for an additional six month period from the date it would otherwise have expired under this clause unless revoked. Nonetheless, no such proclamation shall remain valid for more than three years in any circumstance.

Provided further that if the House of the People is dissolved during any six-month period and if the council of State passes a resolution supporting the continuation of such a proclamation, but no resolution regarding its continuance is passed by the House of People during that period, then the proclamation will cease to be effective thirty days after the House of the people first convenes after its reconstitution unless a resolution supporting the continuation of the proclamation is also passed by the House of the people within the said thirty-day period.

Doctrine of colourable legislation

This legal principle of the “doctrine of colourable legislation” aims to prevent the unconstitutional use of legislative authority of the government. If the legislature is prohibited from doing something, it should not be done in any manner or pretence of doing the act within the legal validity. The principle stems from the maxim ‘what cannot be done directly, cannot be done indirectly’. However, a legislature may pass a law in such a way that it gives a colour of constitutionality while, in reality, that law aims at achieving something which the legislature could not do so. Such legislation is called a colourable piece of legislation and is invalid.

To take an example in Kameshwar Singh vs, State of Bihar (1952), the Bihar Land Reforms Act, 1950 provided that the unpaid rents by the tenants shall vest in the state and one half of them shall be paid back by the state to the landlord or zamindar as compensation for acquisition of unpaid rents. According to a provision in the state list under which the above law was passed, no property should be acquired without payment of compensation. The question was whether the taking of the whole unpaid rent and then returning half of it back to who were entitled to claim is a law which provides for compensation. The Supreme Court found that this was a colourable exercise of power of acquisition by the State Legislature, because ”the taking of the whole and returning a half means nothing more or less than talking of without any return and this is naked confiscation, no matter in whatever specious form it may be clothed or disguised”. The executives are obligated to uphold their position in a dignified manner and the decisions should be based on the public’s aspirations. The judiciary has the authority to prevent governmental abuse of power. When the government oversteps its legislative power by enacting laws beyond its jurisdiction, the judiciary holds the power to scrutinise these laws and nullify them if deemed unconstitutional.

Final judgement of the case in 2017

The Supreme Court has covered all the key aspects and provided a landmark judgement relating to the constitutional validity of the re-promulgation of ordinances. The seven-judge bench of the court in the ratio of 5:2 held that re-issuing ordinances without limit is unconstitutional. In the above case, the bench declared that the powers granted to the President and Governor under Article 123 and Article 213 respectively are not exempted from judicial review. The judgement was authored by Justice D. Y. Chandrachud on behalf of himself along with J. Bobde, J. Lalit, J. Goel and J. Nageswar Rao stated that while the constitution grants the executive the authority to issue ordinances, it is a conditional legislative power that can only be exercised when the Legislature is not in session. The court also highlighted the significance of the decision in D. C. Wadhwa vs State of Bihar, (1986) where the re-promulgation of ordinances was deemed to be a violation of the constitution.

Concurring opinion

Then Chief Justice T. S. Thakur rendered a concurring opinion and raised a relevant question regarding the obligations imposed by Article 123 and Article 213 of the constitution to present ordinances before the legislature. This observation underscores the complexity of the nature of the constitutional provisions signalling the need for further judicial scrutiny.

Dissenting opinion

The dissenting opinion was given by Justice Madan Lokur stated the following-

Article 213 does not mandate the presentation of an ordinance before the legislature
Since an ordinance carries the weightage of a legislation, its validity should not hinge on whether it was tabled before the legislature or not.
The ordinance, regardless of whether it is presented before the legislative assembly, is solely determined as per the provisions of Article 213(2)(a) of the constitution and by the legislative assembly itself.
The executive’s authority over the fate of an ordinance post-promulgation is restricted to its withdrawal by the governor of any state under Article 213(2)(b) of the constitution and the majority of control rests with the State Legislature, which serves as the primary legislative body of the state.

Rationale behind this judgement

Article 123 and Article 213 grant the President and Governor respectively the authority to promulgate ordinances. The ordinances empower the government to enact immediate legislative measures when the parliament is not functioning. The powers of these executives are not exempted from judicial review and also the re-promulgation of ordinances without placing them before legislative scrutiny undermines the democratic legislative process. Even though the ordinance is considered equivalent to law, it does not grant upon the President/Governor an independent legislative authority. Moreover, Article 213 imposes a mandatory constitutional duty on the executive to present the ordinance before the legislature. It is mandatory because the legislature has to determine:

The need, validity and expediency to promulgate an ordinance.
Whether the ordinance should be approved or rejected?
Whether an Act incorporating the provisions of the ordinance should be enacted?

The decision in D. C. Wadhwa vs State of Bihar, (1986) given by the court that re-promulgation of an ordinance is unconstitutional as it undermines the intent of Article 123 and Article 213, outlining a restrictive power to issue ordinances.

Another significant point is that the impact of the ordinance should be irreversible and it should be in the interest of the public to justify the continuation of the said ordinance. The court has the authority to determine the validity of the exercise of the power. Additionally, the power of the ordinances is subject to legislative oversight, in line with the principle of legislative supremacy, and the executive is collectively accountable to the legislature. A crucial point made was that an ordinance issued under Article 123 and Article 213 holds the same power and impact as a law passed by the legislature only if it was presented before the legislature and it ceases to operate six weeks after the legislature has resembled or earlier if a resolution disapproving it is passed. Moreover, they stated that an ordinance can also be revoked. The power to issue an ordinance does not grant the President or the Governor the authority to act as a separate legislative body or an independent source of law making.

Landmark cases referred in Krishna Kumar Singh vs. State of Bihar (2017)

There are certain landmark judgements which proved to be a reference to take an appropriate judgement regarding the present case law. The below mentioned case laws highlighted the abuse of power exercised by the authority and the decision of the court mentioned thereafter. The ordinance is a law that must be treated as such. However, those with the power to promulgate and re-promulgate ordinances need to present them before the Parliament within a stipulated time limit to avoid judicial review. This ensures that the authority to re-promulgate ordinances is used in a bonafide manner and not abused by the executives in any manner.

D.C. Wadhwa vs. State of Bihar (1986)

D. C. Wadhwa was a professor and had a PIL challenging the power of the governor to re-promulgate the various ordinances. After extensive research, he found out the misuse of the ordinance-making power of the governor of Bihar as 256 ordinances were re-promulgated by the government ranging between one and fourteen years without the consideration of the legislation or even a single change in the ordinance. The argument leads that the respondent is an outsider having no legal interest in the validity of the ordinances and thus has no right to say or not a stand in the writ petition. It was also mentioned in their argument that the ordinances were already being represented for their constitutional validity and the remaining ones are on their way to becoming an Act of the Parliament.

The judgement of the case law leads that since re-promulgation of ordinances by the governor will be considered as a colourable exercise of power making it unconstitutional. The Hon’ble Court also mentions the fact that laws are made in accordance with the Constitution and not by the power of the executive.

State of Orissa vs. Bhupendra Kumar Bose (1962)

In the landmark ruling of State of Orissa vs. Bhupendra Kumar Bose (1962), the principle of asserting a right was established which draws upon the analogy of a provisional enactment. The High Court hereunder this case dismissed the petition as the claims and objections were delayed which resulted in not the publishing of the age of all the qualified voters.

The High Court claimed that this drastic confusion of the period in filing the claims and objections had directly affected the results of the election, and by depriving the rights of the several eligible voters whose contributions led to any possibility of changes of the result. It was clearly an abuse of power by the authority of Orissa Municipal Corporation as they notified the period for 14 days only whereas the candidate had 15 days for their soliciting of campaign.

In view of the High Court, the petitioner had been unable to prove the fact that the contravention of rules by them could not affect the results in any manner. Thus, a proper order of injunction has been passed against by the petitioner by the High Court. However, the judgement met hereunder proved to be a limited liability and not widely regarded as influential.

T. Venkata Reddy vs. State of Andhra Pradesh (1985)

In the case of T. Venkata Reddy vs. State of Andhra Pradesh (1985), the Supreme Court clearly stated that an ordinance is equivalent to law and cannot be treated as an administrative action or a decision taken by the executives.

This case also asserts the right to draw upon the analogy of a provisional enactment much like the case of State of Orissa vs. Bhupendra Kumar Bose (1962). The apex court also held that when the constitution stipulates the power to issue ordinances, it will be considered equivalent to an Act and should possess all the characteristics of a legislative Act which includes its rights, protection and constraints as mentioned in the constitution.

S. Krishnan vs. State of Madras (1951)

In the reference to the landmark judgement of S. Krishnan vs. State of Madras (1951), the Madras High Court stated that the arguments were not inclined to be put forward by the respondents and the claim could not be supported since the position of the instructors had been eliminated and the role of lecturer has been designated as an entry-level position. Hence, the court is of the opinion that granting the respondent’s claim would not serve any legitimate purpose and could result in confusion regarding the dispensation of benefits.

Considering the judgement made by the Hon’ble Supreme Court for the aforementioned case law, the court hereby grants the writ appeals and rejects the writ petitions. Given the circumstances, there will be no requirement for either party to bear the cost. In light of the judgement passed by the division bench, the issue raised in the writ petition has already been settled.

S.R. Bommai and ors vs. Union of India (1994)

The case of S. R. Bommai vs. Union of India (1994) proves a milestone in India’s constitutional jurisprudence. This landmark judgement holds significance due to its examination of the constitutional framework governing center-state relations. India follows both federal and unitary governance. By establishing clear guidelines for the imposition of the President’s rule under Article 356 of the constitution, the judgement effectively halted the dismissal of the State Government by the President.

The ruling of the Supreme Court also stated that the President’s power to issue proclamation is not absolute and subject to judicial review and also concluded that floor tests affirmed secularism is an integral component of the constitution’s basic structure.

Analysis of Krishna Kumar Singh vs. State of Bihar (2017)

The judgement in the above said case law broadened the ambit of judicial review concerning ordinances and also increased the transparency in their implications. It empowers the court to scrutinise the actions of both the President and the Governor, ensuring that the issuance of an ordinance is deemed necessary through a thorough assessment of its validity.

Often we witness the government by-passing a constitutional framework of deliberation through ordinances and their repeated re-promulgation. The verdict in the case of Krishna Kumar Singh vs State of Bihar (2017) broadened the scope of judicial review for ordinances, hence, enhancing its transparency and effectiveness. The judgement empowers the court authority to review the President’s and Governor’s power to promulgate ordinances.

Article 123 of the Constitution outlines the rules for using an ordinance as an extraordinary measure. It is evident that the government has been using this more like regular lawmaking, which makes the executives more powerful than Parliament in a democratic system. The court’s verdict is important because it checks the executive’s misuse of power. It aims to assess whether certain rights, privileges or obligations should continue after the ordinance expires or not. However, the problem arises where an ordinance is inherently irreversible despite being contrary to the public interest. Even though it is a gap in the judgement, it would not weaken the judgement as a whole.

Since the reasoning of the Supreme Court was largely based on the judgement of D. C. Wadhwa vs State of Bihar (1986) which held that re-promulgation of ordinances without placing it for legislative scrutiny clearly violates the fundamental essence of constitutionalism and it was also held very clearly by the Apex Court that Parliamentary supremacy will prevail over the executive.

Conclusion

The case of Krishna Kumar Singh vs State of Bihar (2017) strikes a significant balance towards the order passed by Justice Chandrachud in which it was stated clearly that the executive must not abuse the authority given to them and also highlighted that the need for the ordinance is clearly a necessity to promulgate if the Parliament is not functioning.

The judgement was delivered with a majority of opinions and though there is still a gap in how we evaluate the rights and duties after the ordinance lapses, it does not weaken the stance of the judgement. The then Chief Justice in his concurring opinion stated that the interpretation of this matter remains open.

Frequently Asked Questions (FAQs)

What is meant by promulgation and re-promulgation of ordinances?

Ordinance is a law which is promulgated by the President of India when both the Houses of Parliament are not in session. It has the same effect as any law and must be recommended by the union cabinet helping in taking immediate action.

The re-promulgation of an ordinance means to extend the life of an ordinance. Usually, an ordinance ceases to operate after six weeks from the date of re-assembly of the Houses but the re-promulgation is valid only after the legislative consideration and if it fails to do so, the said ordinance would be considered as unconstitutional and invalid in the eyes of the law.

What is the meaning of concurring and dissenting opinions of a judge?

A concurring opinion is expressed by a judge who agrees with the majority of the judgement but for different reasons or additional comments. It also provides alternative or additional legal reasoning that supports the majority’s decisions. It also offers supplementary legal viewpoints but does not alter the judgement.

A dissenting opinion is expressed by a judge who not only disagrees with the majority judgement in a case but also offers an alternative perspective on the case along with disagreements with the legal reasoning or conclusions of the majority. While a dissenting opinion does not have a binding effect on the outcome of the case it may influence future judgement and also may criticise or reject existing precedents relied upon by the majority.