Krishna Kumar Singh v. State of Bihar
Supreme Court of India · 2 January 2017 · 7 judges
A seven-judge bench held that the chain of Bihar Ordinances on Sanskrit schools, re-promulgated without being laid before the legislature, was a fraud on the Constitution, and that the enduring rights theory of Bhupendra Kumar Bose is not correct law.
Facts
On 16 December 1989, about three years after D.C. Wadhwa v. State of Bihar, the Governor of Bihar promulgated an Ordinance taking over 429 non-government Sanskrit schools and transferring their staff to the State Government. It was followed by six more Ordinances up to 1992. None was laid before the State Legislature, no Act was passed, and the last Ordinance lapsed on 30 April 1992. Teachers and staff sought their salaries in the Patna High Court, which held the repeated re-promulgation unconstitutional but protected them against recovery of salaries already paid. In appeal, two Judges of the Supreme Court differed on the validity of the first Ordinance. The matter went to three and then five Judges, and was referred to seven Judges to reconsider State of Orissa v. Bhupendra Kumar Bose and T. Venkata Reddy v. State of Andhra Pradesh.
Questions before the Court
- Whether laying an Ordinance before the legislature under Articles 123 and 213 is mandatory, and what follows from a failure to lay it.
- Whether successive re-promulgation of the Ordinances was a fraud on the Constitution.
- Whether rights created under an Ordinance endure after it ceases to operate, and whether Bhupendra Kumar Bose and T. Venkata Reddy were correctly decided.
- Whether the satisfaction of the Governor or President in promulgating an Ordinance is open to judicial review.
What the Court held
- The Ordinance-making power is legislative but conditional. It does not make the President or Governor a parallel source of law. An Ordinance has the force of law only if it is validly promulgated and complies with Articles 123 and 213.
- Laying an Ordinance before Parliament or the State Legislature is a mandatory constitutional obligation, and failure to lay it is a serious constitutional infraction and abuse of the constitutional process (majority of five; Thakur, CJI left this open and Lokur, J. disagreed).
- Re-promulgation of Ordinances is a fraud on the Constitution, as laid down in D.C. Wadhwa. Every Ordinance from Ordinance 32 of 1989 to Ordinance 2 of 1992 was a fraud on constitutional power, had no legal effect, and conferred no rights or status of government employees.
- The enduring rights theory of Bhupendra Kumar Bose and T. Venkata Reddy, based on the analogy of a temporary statute, is not correct law. 'Cease to operate' does not mean void ab initio. Whether rights survive is a matter of construction, tested by public interest and constitutional necessity, including irreversibility.
- The satisfaction of the President or Governor is not immune from judicial review. The court asks whether it rests on relevant material or is a fraud on power or actuated by an oblique motive, not whether the material is sufficient.
- Moulding the relief, the Court directed that no recovery be made of salaries paid to the employees while the Ordinances were in force.
Why it matters
The judgment overrules the enduring rights view of Bhupendra Kumar Bose and T. Venkata Reddy, with all seven Judges agreeing on that point. The majority holds that laying an Ordinance before the legislature is mandatory, reaffirms D.C. Wadhwa that re-promulgation is a fraud on the Constitution, and holds that the satisfaction behind an Ordinance is subject to judicial review.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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; (viii) 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;”
“We hold and declare that every one of the ordinances at issue commencing with Ordinance 32 of 1989 and ending with the last of the ordinances, Ordinance 2 of 1992 constituted a fraud on constitutional power. These ordinances which were never placed before the state legislature and were re-promulgated in violation of the binding judgment of this Court in D C Wadhwa are bereft of any legal effects and consequences. The ordinances do not create any rights or confer the status of government employees.”
“The theory of enduring rights which has been laid down in the judgment in Bhupendra Kumar Bose and followed in T Venkata Reddy by the Constitution Bench is based on the analogy of a temporary enactment. There is a basic difference between an ordinance and a temporary enactment. These decisions of the Constitution Bench which have accepted the notion of enduring rights which will survive an ordinance which has ceased to operate do not lay down the correct position.”
“I agree with the concurring views expressed by Lokur and Chandrachud, JJ. that the nature of power invoked for issuing ordinances does not admit of creation of enduring rights in favour of those affected by such ordinances.”
Provisions interpreted
Related judgments
- Follows D.C. Wadhwa v. State of Bihar (1986)“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” (page 132)
- Follows S.R. Bommai v. Union of India (1994)“The judgments are also no longer good law in view of the decision in S R Bommai” (page 133)
Case and bench
- Parties
- Krishna Kumar Singh v. State of Bihar
- Case
- Civil Appeal No. 5875 of 1994
- Decided
- 2 January 2017
- Bench
- T.S. Thakur, Madan B. Lokur, S.A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, D.Y. Chandrachud, L. Nageswara Rao
- Opinions
- Majority judgment by D.Y. Chandrachud, J. for himself, S.A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit and L. Nageswara Rao, JJ. T.S. Thakur, CJI concurred in answering the reference in those terms but left open whether laying an Ordinance is mandatory; Madan B. Lokur, J. agreed on overruling the enduring rights cases but dissented on laying, re-promulgation and the first three Ordinances.
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