Ruling on ordinance

ORDINANCES are legislative measures adopted by governments both at the Centre and in the States during the interregnum between two sessions of Parliament or State Assemblies and are necessitated by some urgency.

Ordinances can be legally issued by the President under Article 123 of the Constitution if he is satisfied that circumstances exist for him to take immediate action. Such ordinances will cease to operate at the end of six weeks from the reassembly of Parliament or earlier if they are disapproved by resolutions passed by both Houses of Parliament, or if they are withdrawn before that date. Article 213 has a similar provision with regard to ordinances promulgated by the Governor during the interregnum between two sessions of the State legislature.

In Krishnakumar Singh vs State of Bihar , the Supreme Court’s seven-judge Constitution Bench held on January 2 that the presidential satisfaction with regard to the circumstances rendering it necessary for him to promulgate an ordinance immediately was subject to judicial review. Second, the majority of five judges held that an ordinance should be placed before the legislature. Third, the bench held that acts done under a lapsed or disapproved ordinance would not survive unless they were irreversible or reversing them would be against the public interest.

The seven-judge bench comprised Chief Justice T.S. Thakur (who demitted office on January 3) and Justices Madan B. Lokur, S.A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, Dr D.Y. Chandrachud and L. Nageswara Rao. The majority opinion was delivered by Justice Chandrachud, while Chief Justice Thakur rendered a concurring opinion.

Justice Lokur, in his dissent, held that it was not mandatory to place an ordinance in the legislature and that the failure to do so would not result in the ordinance not having the force and effect as an enacted law or being of no consequence whatsoever.

He also held that if an ordinance ceased to operate, any action taken under the ordinance would be valid during the currency of the ordinance since it had the force and effect of a law, but it could not survive beyond the date of expiry of the ordinance. On this, he agreed with the majority view. Chief Justice Thakur concurred with the majority but held that it was not necessary to go into the question whether it was mandatory to place the ordinance in the legislature.

The background

In 1989, the Governor of Bihar promulgated an ordinance to enable the State government to take over 429 Sanskrit schools in the State. The question before the bench was whether the seven successive repromulgations of the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance, 1989, suffered from any illegality and constitutional impropriety, and whether the benefits conferred by it survived after the last ordinance lapsed.

The Patna High Court held that the repeated repromulgation of an ordinance was unconstitutional. Relying on the decision of the Constitution Bench of the Supreme Court in D.C. Wadhwa and Others vs State of Bihar and Others in 1987, the High Court dismissed the writ petition filed by the employees, who sought the continuance of the benefits, including payment of salaries, conferred by the ordinance beyond its expiry, but protected them against any recovery of salaries already paid to them.

Chief Justice Thakur concurred with the majority that repeated repromulgation of ordinances was a fraud on the Constitution, especially when the government of the time appeared to have persistently avoided the placement of the ordinances before the legislature.

While Justice Lokur reasoned that the first three ordinances in the series were constitutional because the employees did not challenge them, Chief Justice Thakur disagreed, saying that if the edifice was affected, there was no way the foundation could remain unaffected by the vice of unconstitutionality. Therefore, he agreed with the majority that all the ordinances were constitutionally invalid. The Chief Justice, in his concurrent opinion, agreed with Justice Lokur and the majority judges that there could be no enduring rights in favour of those affected by ordinances. He held that the ordinances could not have created any enduring rights for Sanskrit schoolteachers, particularly when they were a fraud on the Constitution. The Chief Justice, however, reasoned that teachers who were paid their salaries under the ordinance and who organised their lives and affairs on the assumption and in the belief that the amount paid to them was legitimately due and payable could not at this distant point of time be asked to cough up the amount disbursed to them. “Payments already made shall not accordingly be recoverable from those who have received the same,” he held.

The majority judgment, written by Justice Chandrachud, held that there could be no manner of doubt that it was mandatory to lay an ordinance before the State legislature. The expression “shall be laid” used in Articles 123 and 213 was a positive mandate, which brooked no exceptions, the majority judges held.

Legislation by the ordinance route was intended to meet extraordinary situations of an emergent nature during the recess of the legislature, the majority judges held. They added that the requirement of laying an ordinance before the legislative body subserved the legislative control over the ordinance-making power and the constitutional purpose of ensuring that the provisions of the ordinance were debated upon and discussed in the legislature. The legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an ordinance had to continue beyond its tenure, which was prescribed by Article 213(2)(a), a law had to be enacted by the legislature incorporating its provisions, the majority judges held.

The placement of an ordinance before the legislature, therefore, was a constitutional necessity, the underlying object and rationale being to enable the legislature to determine the need for and expediency of an ordinance, whether a law should be enacted to replace it or whether the ordinance should be disapproved.

Failure to lay the ordinance in the legislature once it reconvened was a serious infraction because it could impact the ability of the legislature to deal with it. Not placing the ordinance in the legislature was a colourable exercise of power and an abuse of constitutional authority, the majority judges held.

President’s satisfaction

The majority judges held that the court should act with circumspection when the satisfaction of the President or a Governor to promulgate an ordinance was 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 bench held.

The majority judges, however, added that the interference of the court could arise in a case involving a fraud on power or an abuse of power. This essentially involved a situation where the power had been exercised to secure an oblique purpose, they observed. “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 bench held.

The majority judges were clear that repromulgation of ordinances was constitutionally impermissible since it represented an effort to overreach the legislative body, which was a primary source of lawmaking authority in a parliamentary democracy. “Repromulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors,” they held.

The danger of repromulgation lay in the threat it posed to the sovereignty of Parliament and State legislatures, which had been constituted as primary lawgivers under the Constitution, they said. Open legislative debate and discussion provided sunshine, which separated secrecy of ordinance-making from transparent and accountable governance through law making, they added.

In deciding to mould the relief, the effort of the court would be to determine whether undoing what had been done under the ordinance would manifestly be contrary to the public interest or constitutional necessity, demonstrated by clear and cogent material, the majority judges held. Therefore, they refrained from ordering recovery of the benefits conferred by the ordinance on the Sanskrit teachers in Bihar, even while holding that the repromulgated ordinances were unconstitutional.