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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5875 OF 1994

KRISHNA KUMAR SINGH & ANR.       .....APPELLANTS

VERSUS

STATE OF BIHAR & ORS.                                                    ....RESPONDENTS  

WITH

CIVIL APPEAL NOS. 5876-5890 OF 1994

WITH

WRIT PETITION (C) NO. 580 OF 1995

AND

CIVIL APPEAL NOS. 3533-3595 OF 1995

J U D G M E N T

Madan B. Lokur, J.

1. Having  carefully  read  the  erudite  judgment  prepared  by  brother

Chandrachud, I regret my inability to agree that laying an Ordinance promulgated

by the Governor of a State before the State Legislature is mandatory under Article

213(2) of the Constitution and the failure to lay an Ordinance before the State

Legislature  results  in  the Ordinance  not  having the force and effect  as  a  law

enacted and would be of no consequence whatsoever. In my opinion, it is not

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mandatory under Article 213(2) of the Constitution to lay an Ordinance before the

Legislative Assembly of  the State Legislature,  nor would the failure to do so

result in the Ordinance not having the force and effect as an enacted law or being

of no consequence whatsoever.  

2. Further,  in  my  opinion,  an  Ordinance  cannot  create  an  enduring  or

irreversible right  in a citizen.  Consequently and with respect,  a  contrary view

expressed by this Court in  State of Orissa v. Bhupendra Kumar Bose1 and  T.

Venkata  Reddy  v.  State  of  Andhra  Pradesh2 requires  to  be  overruled.  In

overruling these decisions, I agree with brother Chandrachud though my reasons

are different.

3. As  far  as  the  re-promulgation  of  an  Ordinance  is  concerned,  I  am  of

opinion that the re-promulgation of an Ordinance by the Governor of a State is

not  per se a fraud on the Constitution. There could be exigencies requiring the

re-promulgation of an Ordinance.  However, re-promulgation of an Ordinance

ought not to be a mechanical exercise and a responsibility rests on the Governor

to be satisfied that “circumstances exist which render it necessary for him to take

immediate action” for promulgating or re-promulgating an Ordinance.  

4. Finally, I  am of  the  view that  in  the  absence  of  any challenge  by  the

employees to the first three Ordinances promulgated by the Governor of the State

of Bihar, their validity must be assumed. Consequently, even though these three 11962 Supp (2) SCR 380 – Bench of 5 Judges 2(1985) 3 SCC 198 – Bench of 5 Judges

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Ordinances  may have  been  repealed,  the  employees  would  be  entitled  to  the

benefits under them till they ceased to operate and the benefits obtained by the

employees  under  these  three  Ordinances  are  justified.  However,  these  three

Ordinances do not confer any enduring or irreversible right or benefits on the

employees. The promulgation of the fourth and subsequent Ordinances has not

been adequately justified by the State of Bihar in spite of a specific challenge by

the employees and therefore they were rightly struck down by the High Court.

Therefore, I partly agree with brother Chandrachud on the issue of the validity of

the Ordinances.   

5. The  facts  relating  to  these  appeals  have  been  detailed  by  brother

Chandrachud and it is not necessary to repeat them. All that need be said is that in

terms of Article 154 of the Constitution the executive power of the State shall be

vested in the Governor of the State and shall be exercised by him either directly

or through officers subordinate to him in accordance with the Constitution.  In

terms of  Article  168 of  the  Constitution  every  State  shall  have  a  Legislature

which consists of the Governor of the State and in the case of some States, two

Houses and in the other States, one House. Where there are two Houses of the

Legislature, one shall be known as the Legislative Council and the other shall be

known as the Legislative Assembly. We are concerned with the State of Bihar

which has two Houses of the Legislature.

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Promulgation of an Ordinance

6. Article 213 of the Constitution provides that  when the Governor of the

State 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.”  However,  this  is  subject  to  the  exception  that  the

Governor cannot promulgate an Ordinance when both Houses of the Legislature

are in session. An Ordinance is promulgated by the Governor of a State on the aid

and advice of his Council of Ministers and is in exercise of his legislative power.

An Ordinance has the “same force and effect as an Act of the Legislature of the

State assented to by the Governor” in terms of Article 213(2) of the Constitution.

Clause  (a)  of  Article  213(2)  of  the  Constitution  provides  that  every  such

Ordinance “shall be laid before the Legislative Assembly of the State, or where

there is a Legislative Council in the State, before both the Houses, and shall cease

to operate at the expiration of six weeks from the reassembly of the Legislature,

or if before the expiration of that period a resolution disapproving it is passed by

the Legislative Assembly and agreed to by the Legislative Council, if any, upon

the passing of  the  resolution or,  as  the case  may be,  on the resolution  being

agreed  to  by  the  Council.”  Clause  (b)  of  Article  213(2)  of  the  Constitution

provides that an Ordinance may be withdrawn at any time by the Governor. There

is an Explanation to Article 213(2) of the Constitution but we are not concerned

with it.  

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7. There  is  no  dispute  in  these  appeals  that  the  Governor  of  Bihar

promulgated as many as eight Ordinances (one after another and on the same

subject)  in  exercise  of  his  legislative  power  under  Article  213(1)  of  the

Constitution. None of these Ordinances was laid before the Legislative Assembly

or the Legislative Council.  

8. It is important to stress, right at the threshold, that the promulgation of an

Ordinance  is  a  legislative  exercise  and  an  Ordinance  is  promulgated  by  the

Governor of a State only on the aid and advice of the Executive; nevertheless, the

Governor must be satisfied that circumstances exist which render it necessary for

him to take immediate action.   The State Legislature has no role in promulgating

an Ordinance or actions taken under an Ordinance - that is within the domain of

the Executive. The State Legislature keeps a check on the exercise of power by

the Executive through the Governor. This  is  by a  Resolution  disapproving an

Ordinance.  The  State  Legislature  is  expected  to  ensure  that  the  separation  of

powers  between  the  Executive  and  the  Legislature  is  maintained  and  is  also

expected  to  ensure  that  the  Executive  does  not  transgress  the  constitutional

boundary  and encroach  on the  powers  of  the  Legislature  while  requiring  the

Governor to promulgate an Ordinance.  

9. Article 213 of the Constitution does not require the Legislature to approve

an Ordinance -  Article  213(2)  of  the Constitution refers  only to a  Resolution

disapproving an Ordinance. If an Ordinance is disapproved by a Resolution of the

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State  Legislature,  it  ceases  to  operate  as  provided in  Article  213(2)(a)  of  the

Constitution.  If  an  Ordinance  is  not  disapproved,  it  does  not  lead  to  any

conclusion that it has been approved – it only means that the Ordinance has not

been disapproved by the State Legislature, nothing more and nothing less.  

10. The concept of disapproval of an Ordinance by a Resolution as mentioned

in Article 213(2)(a) of the Constitution may be contrasted with Article 352(4) of

the Constitution where a positive act of approval of a Proclamation issued under

Article  352(1)  of  the  Constitution  is  necessary.  Similarly,  a  positive  act  of

approval  of  a Proclamation issued under  Article  356(1)  of  the Constitution is

necessary under Article 356(3) of the Constitution. Attention may also be drawn

to a Proclamation issued under Article 360 of the Constitution which requires

approval under Article 360(2) of the Constitution. There is therefore a conscious

distinction made in the Constitution between disapproval of an Ordinance (for

example)  and  approval  of  a  Proclamation  (for  example)  and  this  distinction

cannot  be  glossed over. It  is  for  this  reason that  I  am of  the  view that  only

disapproval of an Ordinance is postulated by Article 213(2)(a) of the Constitution

and  approval  of  an  Ordinance  is  not  postulated  by  Article  213(2)(a)  of  the

Constitution.   

11. The expression of disapproval of an Ordinance could be at the instance of

any one Member of the Legislative Assembly in view of Rule 140 of the Rules of

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Procedure and Conduct of  Business in the Bihar Vidhan Sabha.3  If  the State

Legislature disapproves an Ordinance by a Resolution, it ceases to operate. One

of the important issues before us is whether after an Ordinance ceases to operate,

do concluded actions and transactions under that Ordinance survive.

After the promulgation of an Ordinance

12. It  is  in this background, after the promulgation of an Ordinance by the

Governor  of  a  State  at  the  instance  of  the  Executive,  that  the  Constitution

visualizes three possible scenarios.  

(a) Firstly, despite the seemingly mandatory language of Article 213(2)(a) of the

Constitution,  the  Executive  may  not  lay  an  Ordinance  before  the  Legislative

Assembly of the State Legislature. The question is: Is it really mandatory for an

Ordinance  to  be  laid  before  the  Legislative  Assembly  and  what  is  the

consequence if it is not so laid?

(b) Secondly, the Executive may, in view of the provisions of Article 213(2)(b) of

the Constitution advise the Governor of the State to withdraw an Ordinance at

any  time,  that  is,  before  reassembly  of  the  State  Legislature  or  even  after

reassembly. In this scenario, is it still mandatory that the Ordinance be laid before

the Legislative Assembly? 3 140.  Discussion on Governor’s Ordinance:- As soon as possible after the Governor has promulgated an  Ordinance under  clause (1)  of  Article  213 of  the  Constitution,  printed copies of such Ordinance shall be made available by the Secretary to the members of the Assembly.  Within six weeks from the re-assembly of the Assembly, any member may, after giving  three  clear  days’  notice  to  the  Secretary,  move  a  resolution  approving  the Ordinance; and if such resolution is passed, it shall be forwarded to the other House with a message asking for its concurrence.   

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(c)  Thirdly,  the  Executive  may, in  accordance  with  Article  213(2)(a)  of  the

Constitution  lay  an  Ordinance  before  the  Legislative  Assembly  of  the  State

Legislature.  What could happen thereafter?

I propose to deal with each possible scenario.

First scenario

13. As far as the first scenario is concerned, namely, the Executive not laying

an Ordinance before the Legislative Assembly, brother Chandrachud has taken

the view that  on a textual  reading of  Article 213(2)(a)  of  the Constitution an

Ordinance  promulgated  by the  Governor  shall  mandatorily  be  laid before the

State Legislature. With respect, I am unable to subscribe to this view.

14. Article 213(2)(a) of the Constitution provides that an Ordinance ceases to

operate at the expiration of six weeks of reassembly of the State Legislature or if

before the expiration of that period a Resolution disapproving it is passed by the

State Legislature. An Ordinance ceasing to operate at the expiration of six weeks

of reassembly of the State Legislature is not related or referable to laying the

Ordinance before the State Legislature. Therefore, whether an Ordinance is laid

before the State  Legislature  or  not,  the provisions  of  Article  213(2)(a)  of  the

Constitution kick in and the Ordinance will cease to operate at the expiration of

six weeks of reassembly of the State Legislature. On a textual interpretation of

Article  213(2)(a)  of  the  Constitution,  not  laying  an  Ordinance  before  the

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Legislative Assembly has only one consequence, which is that the Ordinance will

cease  to  operate  at  the  expiration  of  six  weeks  of  reassembly  of  the  State

Legislature.  While  I  agree  that  not  laying  an  Ordinance  before  the  State

Legislature  on  its  reassembly  would  be  extremely  unfortunate,  morally  and

ethically, but that does not make it mandatory for the Ordinance to be so laid.  

15. In this context, does the Constitution provide for any consequence other

than the Ordinance ceasing to operate? In my opinion, the answer is No. If an

Ordinance is not laid before the State Legislature it does not become invalid or

void. However, a view has been expressed that if an Ordinance is not at all laid

before the Legislative Assembly then it cannot have the same force and effect as a

law enacted and would be of no consequence whatsoever. In this view, the force

and effect of an Ordinance as a law is dependent on the happening of a future

uncertain event, that is, laying the Ordinance before the Legislative Assembly. I

am afraid the force and effect of a law cannot depend on an uncertainty and the

occurrence of a future event, unless the law itself so provides. An Ordinance, on

its promulgation either has the force and effect of a law or it does not – there is no

half-way house dependent upon what steps the Executive might or might not take

under Article 213(2) of the Constitution.  

16. Article 213(2) of the Constitution is, in a sense, disjunctive – the first part

declaring that an Ordinance promulgated under this Article shall have the same

force  and effect  as  an Act  of  the  Legislature  of  the  State  assented  to  by the

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Governor  and  the  second  part  requiring  laying  the  Ordinance  before  the

Legislative Assembly. It  is not  possible for me to read the first  part as being

conditional or dependent on the performance of the second part, that is to say that

if the Ordinance is not so laid, it will not have the force and effect of a law. There

is nothing in Article 213(2) of the Constitution to suggest this construction.

17. If an Ordinance not laid before the Legislative Assembly does not have the

force and effect of a law, then it must necessarily be void ab initio or would it be

void  from the  date  on  which  it  is  required  to  be  laid  before  the  Legislative

Assembly, or  some other  date? This  is  not  at  all  clear  and the  view that  the

Ordinance  would  be  of  no  consequence  whatsoever  or  void  introduces  yet

another uncertainty – when should the Ordinance be laid before the Legislative

Assembly – immediately on its reassembly or on a later date and from which date

does it become void?   

18. Article 213(3) of the Constitution provides for the only contingency when

an Ordinance is void. This provision does not suggest that an Ordinance would be

void  if  it  is  not  placed  before  the  State  Legislature.  The  framers  of  our

Constitution were quite conscious of and recognized the distinction between an

Ordinance  that  is  void  (under  Article  213(3)  of  the  Constitution)  and  an

Ordinance that ceases to operate (under Article 213(2) of the Constitution). If an

Ordinance is void, then any action taken under a void Ordinance would also be

void. But if an Ordinance ceases to operate, any action taken under the Ordinance

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would be valid during the currency of the Ordinance since it has the force and

effect of a law. Clearly, therefore, the distinction between Clause (2) and Clause

(3)  of  Article  213  of  the  Constitution  is  real  and  recognizable  as  also  the

distinction between an Ordinance that is void and an Ordinance that ceases to

operate.  A contrary  view  blurs  that  distinction  and  effectively  converts  an

Ordinance  otherwise  valid  into  a  void  Ordinance.  I  am  afraid  this  is  not

postulated by Article 213 of the Constitution.   

19. For the above reasons, both textual and otherwise, I hold that on a reading

of Article 213(2) of the Constitution it is not mandatory that an Ordinance should

be  laid  before  the  Legislative  Assembly  of  the  State  Legislature.  While

concluding that the Constitution does not make it mandatory for the Executive to

lay an Ordinance promulgated by the Governor of the State before the Legislative

Assembly, I do share the concern what this would mean for our democracy in the

long run;  perhaps  the State  Legislatures  would need to  be  more  vigilant  and

proactive in keeping a check on the Executive riding roughshod over democratic

requirements and exert their constitutional supremacy over the Executive.

20. What can a Member of the Legislative Assembly do if an Ordinance is not

laid before the State Legislature – is he without recourse?  When an Ordinance is

promulgated it is printed in the Official Gazette and therefore every legislator is

aware of its promulgation. As far as the State Legislature of Bihar is concerned,

under Rule 140 of the Rules of Procedure and Conduct of Business in the Bihar

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Vidhan  Sabha  a  printed  copy  of  the  Ordinance  is  also  required  to  be  made

available to all Members of the Legislative Assembly by its Secretary.  Therefore,

on reassembly of the Legislative Assembly, any Member may move a resolution

for disapproving the Ordinance either on the basis of the Official Gazette or on

the basis of a printed copy of the Ordinance made available by the Secretary of

the Legislative Assembly.  Consequently, even if the Executive does not lay the

Ordinance  before  the  State  Legislature  or  if  the  Secretary  of  the  Legislative

Assembly does not supply a printed copy of the Ordinance, a Member of the

Legislative Assembly is not helpless. Surely, his right to move a Resolution for

disapproving the Ordinance cannot be taken away by this subterfuge.  This right

of  a  Member  of  the  Legislative  Assembly  cannot  be  made  dependent  on  the

Executive laying the Ordinance before the State Legislature, nor can this right be

taken  away by the  Executive  by simply  not  laying  the  Ordinance  before  the

Legislative Assembly.

21. Therefore,  even without  making the  laying of  an  Ordinance  before  the

State Legislature mandatory, the Constitution does provide adequate checks and

balances against a possible misuse of power by the Executive.

Second scenario

22. As far as the second scenario is concerned, the Executive is entitled to, in

view  of  the  provisions  of  Article  213(2)(b)  of  the  Constitution  advise  the

Governor  of  the  State  to  withdraw an Ordinance  at  any time,  that  is,  before 12

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reassembly of the State Legislature or after its reassembly but before it is laid

before  the  Legislative  Assembly.  In  either  situation  (particularly  in  the  latter

situation)  could  it  be  said  that  laying  the  Ordinance  before  the  Legislative

Assembly would still  be mandatory? I do not  think so.  In such situations,  no

purpose  would  be  served  by  laying  a  withdrawn  Ordinance  before  the  State

Legislature except perhaps completing an empty formality. Our Constitution has

not  been  framed  for  the  sake  of  completing  empty  formalities.  This  is  an

additional  reason  for  holding  that  there  is  no  mandatory  requirement  that

regardless of the circumstances, an Ordinance shall mandatorily be placed before

the State Legislature.  

23. The  reasons  for  withdrawal  of  an  Ordinance  by  the  Governor  at  the

instance  of  the  Executive,  whether  before  or  after  reassembly  of  the  State

Legislature are not relevant for the present discussion and it is not necessary to go

into them.

Third scenario

24. The  third scenario  is  where the  Executive,  in  accordance  with Article

213(2)(a) of the Constitution lays an Ordinance before the Legislative Assembly.

The Ordinance could be ‘ignored’ and as a result no one may move a Resolution

for its disapproval. In that event, the Ordinance would run its natural course and

cease  to  operate  at  the  expiration  of  six  weeks  of  reassembly  of  the  State

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25. However, if a Resolution is moved for disapproval of the Ordinance, the

State Legislature may reject the Resolution and in that event too, the Ordinance

would run its natural course and cease to operate at the expiration of six weeks of

reassembly of the State Legislature.  

26. But if a Resolution for disapproval of an Ordinance is accepted and the

Ordinance disapproved then it would cease to operate by virtue of the provisions

of Article 213(2)(a) of the Constitution on the Resolution being passed by the

Legislative Assembly and the Legislative Council agreeing with it.

27. In other words, several possibilities get thrown up when an Ordinance is

laid  before  the  State  Legislature.  Depending  on  the  decision  of  the  State

Legislature,  an Ordinance might lapse by efflux of  time and cease to operate

thereafter  or  it  might  earlier  cease  to  operate  if  a  Resolution  is  passed

disapproving the Ordinance or it might even be replaced by a Bill.   

28. In fact, a situation of replacing an Ordinance by a Bill did arise in State of

Orissa v. Bhupendra Kumar Bose4 read with Bhupendra Kumar Bose v. State

of Orissa.5  In that case, the Orissa Municipal Elections Validation Ordinance,

1959 (Orissa  Ordinance  No.1  of  1959)  was  promulgated  by the  Governor  of

Orissa on 15th January, 1959.  It  is  not  clear  whether the Ordinance was laid

before the State Legislature or not or whether it was disapproved but in any event

the government of the day sought to introduce in the Legislative Assembly on 4 1962 Supp (2) SCR 380 – Bench of 5 Judges 5 OJC No.12 of 1959 decided on 20.03.10959 by the Orissa High Court  [MANU/OR/0014/1960]

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23rd February, 1959 a Bill  entitled “Orissa Municipal  Election Validating Bill,

1959”.   However,  the  Legislative  Assembly  refused  to  grant  leave  for  its

introduction by a majority of votes. This decision of the majority had no impact

on the life of the Ordinance which lapsed apparently on 1st April, 1959 six weeks

after reassembly of the State Legislature.

29. It is clear that when a Bill is introduced in the Legislative Assembly, it

becomes  the  property  of  the  Legislative  Assembly  and  even  assuming  an

Ordinance is laid before the State Legislature and is disapproved by a Resolution,

the disapproval has no impact on the Bill. Conversely, if the introduction of a Bill

is declined by the Legislative Assembly or a Bill introduced in the Legislative

Assembly is defeated, it will have no impact on an Ordinance laid before the

Legislative Assembly which will continue to operate till it is disapproved or it

ceases to operate at the expiration of six weeks of reassembly of the Legislative

Assembly. Whether to pass or not pass or enact or not enact a Bill into a law is

entirely  for  the  Legislative  Assembly  to  decide  regardless  of  the  fate  of  the

Ordinance, as is obvious or is even otherwise evident from Bhupendra Kumar

Bose.  Similarly,  disapproval  of  an  Ordinance  is  entirely  for  the  Legislative

Assembly and the Legislative Council to decide regardless of the fate of any Bill

introduced or sought to be introduced.  

30. The sum and substance of this discussion is:  (i)  There is no mandatory

requirement that an Ordinance should be laid before the Legislative Assembly on

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its  reassembly.  (ii)  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. (iii) 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.   

Effect of concluded transactions under an Ordinance       

31. In  the  above background and in  view of  the  facts  before  us,  the  issue

arising in the present appeals also relates to the effect or consequences or survival

of actions and transactions concluded under an Ordinance prior to its ceasing to

operate by virtue of its  being disapproved by the Legislative Assembly, or its

otherwise ceasing to operate or its withdrawal by the Governor of the State.      

32. When an Ordinance is sought to be replaced by a Bill introduced in the

State Legislature, it is entirely for the State Legislature to decide whether actions

taken under the Ordinance are saved or are not saved or actions taken but not

concluded will continue or will not continue. Being constitutionally transient, an

Ordinance  cannot,  unlike  a  temporary  Act,  provide  for  any savings  clause  or

contingency.  Even  if  an  Ordinance  hypothetically  could  provide  for  such  a

savings clause, the State Legislature may not accept it, since a Bill introduced by

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the government of the day is the property of the State Legislature and it is entirely

for the State Legislature to decide the contents of the Act.

33. When an Ordinance ceases to operate, there is no doubt that all actions in

the pipeline on the date it ceases to operate will terminate. This is simply because

when the Ordinance ceases to operate, it also ceases to have the same force and

effect as an Act assented to by the Governor of the State and therefore pipeline

actions  cannot  continue  without  any  basis  in  law. Quite  naturally, all  actions

intended to be commenced on the basis of the Ordinance cannot commence after

the Ordinance has ceased to operate. Do actions or transactions concluded before

the Ordinance ceases to operate survive after the terminal date?

34. As far as an Act enacted by a State Legislature is concerned, there is no

difficulty in appreciating the consequence of its repeal.  Section 6 of the General

Clauses Act, 1897 is quite explicit on the effect of the repeal of an Act passed by

a Legislature.

35. In so far as a temporary Act is concerned, actions taken during its life but

not  concluded  before  it  terminates  (pipeline  transactions)  will  not  continue

thereafter since those actions and transactions would not be supported by any

existing law. However, to tide over any difficulty that might be caused in such an

eventuality, a temporary Act could provide for the continuance of such actions

and transactions. The reason for this is that a temporary Act is enacted by the

Legislature  and  it  certainly  has  the  power  to  cater  to  such  eventualities. 17

Page 18

Therefore, if there is a permissive provision to the contrary, a pipeline transaction

could survive the life of a temporary Act. Such an eventuality specifically came

up for consideration before a Constitution Bench of this Court in S. Krishnan v.

State of Madras.6   In that case, the Preventive Detention Act, 1950 (a temporary

Act that would cease to have effect on 1st April, 1951 except as regards things

done or omitted to be done before that  date)  was amended by the Preventive

Detention (Amendment) Act, 1951. The period of preventive detention of detenus

(such as the petitioners therein who were already under detention) was extended

from one year to two years by extending the life of the Preventive Detention Act,

1950 till 1st April, 1952.

36. One of the questions that arose for the consideration of this Court in that

case was whether the preventive detention of a person, detained for example on

21st February, 1951 (as in the case of some petitioners) could continue beyond 31st

March,  1951  (or  1st April,  1951)  by  virtue  of  the  Amendment  Act  when  the

temporary  Act  under  which  they  were  detained  would  have,  but  for  the

Amendment  Act,  ceased  to  operate  on  1st April,  1951.  This  involved  the

interpretation and constitutional  validity of  Section 12 of the Amendment Act

which reads as follows:

“For the avoidance of doubt it is hereby declared —

(a) every detention order in force at the commencement of the Preventive Detention (Amendment) Act, 1951, shall continue in force and shall have

6 (1951) SCR 621 – Bench of 5 Judges 18

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effect as if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, 1951; and

(b) nothing contained in sub-section (3) of Section 1, or sub-section (1) of Section 12 of this Act as originally enacted shall be deemed to affect the validity or duration of any such order.”

37. Answering the question in the affirmative,  Justice  Patanjali  Sastri  (with

Chief  Justice  Harilal  Kania  concurring)  took  the  view  that  because  of  the

Amendment  Act  the  period  for  continuing  the  preventive  detention  could  be

extended and the continued preventive detention beyond 31st March, 1951 was

valid.  It was said:

“……  although the  new Act  does  not  in  express  terms  prescribe  in  a separate provision any maximum period as such for which any person may in any class or classes of cases be detained, it fixes, by extending the duration  of  the  old  Act  till  the  1st  April,  1952,  an  overall  time  limit beyond which preventive detention under the Act cannot be continued. The  general  rule  in  regard  to  a  temporary  statute  is  that,  in  the absence of special provision to the contrary, proceedings which are being taken against the person under it will  ipso facto terminate as soon  as  the  statute  expires (Craies  on  Statutes,  4th Edition,  p.  347). Preventive detention which would, but for the Act authorizing it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself.  The new Act thus in substance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date.” [Emphasis supplied].

38. Justice Mahajan (with Justice S.R. Das concurring) also took a definitive

view that nothing further could be done under a temporary Act after it expires.  It

was held as follows:

“It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which  was  of  a  temporary  nature  and  whose  own  tenure  of  life  was

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limited to one year.  Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them.  The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law.” [Emphasis supplied].

39. Thereafter,  it  was  held  that  since  the  Amendment  Act  was  valid,  the

petitioners were not entitled to release merely on the ground that the period of

one year mentioned in the Preventive Detention Act, 1950 had expired.

40. Justice  Vivian Bose disagreed with the majority view and held that  the

expiry of the temporary Act would not result in the preventive detentions coming

to an end.  The learned Judge held:

“…. I cannot agree that these detentions would come to an end with the expiry of the Act. The rule in the case of temporary Acts is that –  

“as a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be  taken  upon  it,  and  it  ceases  to  have  any  further  effect. Therefore,  offences  committed  against  temporary  Acts  must  be prosecuted and punished before the Act expires.” (Craies on Statute Law, 4th edition, p. 347).

But  transactions  which  are  concluded  and  completed  before  the  Act expires continue in being despite the expiry.  See Craies on Statute Law, page 348, and 31 Halsbury’s Laws of England (Hailsham Edition), page 513.  I take this to mean that if a man is tried for an offence created by a temporary  Act  and  is  found  guilty  and  sentenced  to,  say,  five  years’ imprisonment, he would have to serve his term even if the Act were to expire the next day.  In my opinion, the position is the same in the case of detentions.  A man, who is arrested under a temporary detention Act and validly ordered to be detained for a particular period, would not be  entitled  to  claim  release  before  his  time  just  because  the  Act expired earlier.” [Emphasis supplied].

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41. It is, therefore, evident that the view of a majority of this Court was that

nothing done would survive the termination of the temporary Act, unless there is

a provision or savings clause to the contrary or unless the life of the temporary

Act is statutorily extended.  Does this conclusion apply to an Ordinance as well?

It must be remembered that an Ordinance has “the same force and effect as an

Act of the Legislature of the State assented to by the Governor” [Art. 213(2) of

the Constitution] but is not an Act of the Legislature – it is not even a temporary

Act of the Legislature.   

42. This question came up for consideration in  Bhupendra Kumar Bose and

while deciding the issue, this Court referred to three English decisions - Warren

v. Windle7, Steavenson v. Oliver8 and Wicks v. Director of Public Prosecutions9.  

43. In Warren the decision of the Court was that where a statute professes to

repeal absolutely a prior law, and substitutes other provisions on the same subject,

which are limited to continue only till a certain time, the prior law does not revive

after the repealing statute is spent, unless the intention of the Legislature to that

effect is expressed. In that context, it was stated by Lord Ellenborough, C.J. that

“a  law,  though  temporary  in  some  of  its  provisions,  may  have  a  permanent

operation in other respects. The stat. 26 Geo. 3, c. 108, professes to repeal the

7 (1803) 3 East 205; 102 E.R. (KB) 578 8 151 E.R. 1024 9 [1947] AC 362

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statute  of  19  Geo.  2,  c.  35,  absolutely,  though  its  own  provisions,  which  it

substituted in place of it, were to be only temporary.”    

44. In Steavenson the temporary statute expired on 1st August, 1826 but in the

meantime a person was given a right to practice as an apothecary. The temporary

statute  did  not  contain  any  savings  provision  and  it  was  contended  that  the

expiration  of  the  temporary  statute  would  bring  to  an  end  all  the  rights  and

liabilities  created  by it.  On these  broad facts,  it  was  observed by one  of  the

learned  judges  (Parke,  B.)  that  the  construction  of  the  statute  would  be  the

determining factor. It was held:

“Then comes the question, whether the privilege of practising given by that stat. 6 Geo.4, referred to in the replication, is one which continues notwithstanding  the  expiration  of  that  statute.  That  depends  on  the construction of the temporary enactment. There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.  We must therefore look at this act, and see whether the restriction in the 11th clause, that the provisions of the statute were only to last for a limited time, is applicable to this privilege. It seems to me that  the meaning of the legislature was,  that  all  assistant-surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practicing as apothecaries, & c., as if they had been in actual practice as such on the 1st of August, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after the 1st of August, 1826. ” [Emphasis supplied].

45. In Wicks the question framed was: Is a man entitled to be acquitted when

he is proved to have broken a Defence Regulation at a time when that regulation

was in operation, because his trial and conviction take place after the regulation

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has expired? While answering this question, it was observed that the question is a

pure  question  of  the  interpretation  of  sub-section  3  of  Section  11  of  the

Emergency Powers (Defence) Act, 1939. It was then held that:

“Section  11  begins  with  the  words  “Subject  to  the  provisions  of  this section,” and those introductory words are enough to warn anybody that the provision following immediately is not absolute, but is going to be qualified in some way by what follows. It is therefore not the case that, at  the  date  chosen,  the  Act  expires  in  every  sense;  there  is  a qualification. Without  discussing  whether  the  intermediate  words  are qualifications, sub-s. 3, in my opinion, is quite plainly a qualification. It begins  with  the  phrase  “The  expiry  of  this  Act”  –  a  noun  which corresponds with the verb “expire”  -“The expiry of this Act shall not affect  the  operation  thereof  as  respects  things  previously  done  or omitted to be done.”  

Learned counsel for the appellants have therefore been driven to argue ingeniously,  but  admit  candidly,  that  the  contention  they  are  putting forward  is,  that  the  phrase  “things  previously  done”  does  not  cover offences previously committed. I think that view cannot be correct. It is clear that Parliament did not intend sub-s. 3 to expire with the rest of the Act, and that its presence in the statute is a provision which preserves the right to prosecute after the date of expiry.” [Emphasis supplied].

46. In all three cases, on a construction of the temporary statute, it was held

that  its  provisions  would not  come to an end on its  expiry. This  Court,  on a

consideration of the matter acknowledged that proposition and accepted the view

taken by Patanjali Sastri J that on the expiry of a temporary Act, all actions and

transactions terminate unless the temporary Act provides otherwise. This is clear

from the following passage in Bhupendra Kumar Bose:

“It is true that the provisions of Section 6 of the General Clauses Act in relation  to  the  effect  of  repeal  do  not  apply  to  a  temporary  Act.  As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. State of Madras the general rule in regard to a temporary statute is that in the

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absence of special provision to the contrary, proceedings which are being taken against a person under it will  ipso facto terminate as soon as the statute expires.  That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of S.6 of the General Clauses Act. Incidentally, we ought to add that it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Art. 213(2)(a).” [Emphasis supplied]

47. However, this  Court  unfortunately overlooked the qualitative distinction

between  a  temporary  Act  (enacted  by  a  Legislature)  and  an  Ordinance

(promulgated by the Executive without the Legislature coming into the picture at

all) and equated them. By making that equation, this Court with respect, made a

fundamental and qualitative error and also, with respect, erroneously relied upon

the  English  decisions  which  relate  to  temporary  statutes  whose  interpretation

depended upon their  construction.  As a  result  of  this  erroneous equation,  this

Court concluded as follows:

“Therefore,  in  considering  the  effect  of  the  expiration  of  a  temporary statute, it would be unsafe to lay down any inflexible rule.  If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which  it  was  created  has  expired.  If  a  penalty  had been  incurred under  the  statute  and  had  been  imposed  upon  a  person,  the imposition of the penalty would survive the expiration of the statute. That  appears  to  be  the  true  legal  position  in  the  matter.”  [Emphasis supplied].

48. The  English  decisions  concerned  themselves  with  the  construction  of

temporary  statutes  and  nothing  else.  Bhupendra  Kumar  Bose adopted  for

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Ordinances the construction of temporary statutes given by the English decisions

and introduced an ‘enduring rights’ theory into our jurisprudence.

49. But, what is more significant for the present purposes is that though this

Court accepted the view of  Patanjali Sastri J, an observation was made at the end

of the above quoted passage, that is, “Incidentally, we ought to add that it may

not  be  open  to  the  Ordinance  making  authority  to  adopt  such  a  course  [of

enacting a savings provision as in a temporary statute] because of the obvious

limitation  imposed  on  the  said  authority  by  Article  213(2)(a)  [of  the

Constitution].” In view of the above, I see some difficulty in incorporating the

‘enduring rights’ theory into Ordinances.   

50. This observation is significant for two reasons: Firstly, it recognizes the

obvious  distinction  between  a  temporary  Act  and  an  Ordinance.  Secondly  it

recognizes that while there may be life after the expiry of a temporary Act if a

savings provision is incorporated therein, Article 213(2)(a) of the Constitution

perhaps prohibits the incorporation of a provision having an enduring effect in an

Ordinance, by necessary implication, with the result that there may not be any life

in an Ordinance after it ceases to operate.  In other words, neither any pending

action or transaction nor any concluded action or transaction can survive beyond

the  date  of  expiry  of  an  Ordinance.  I  accept  this  proposition  because  of  the

historical background relating to Ordinances.

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Historical background

51. Section  88  of  the  Government  of  India  Act,  1935  gave  power  to  the

Governor of  a  Province to  promulgate  an Ordinance during the recess  of  the

Legislature, if he is satisfied that circumstances exist which render it necessary to

take immediate action.

52. Section 90 of the Government India Act, 1935 gave an extraordinary power

to  the  Governor  to  enact  a  Governor’s Act  containing  such  provisions  as  he

considers necessary.  Sub-section (3) of Section 90 of the Government of India

Act, 1935 provides that a Governor’s Act shall have the same force and effect as

an Act of the Provincial Legislature assented to by the Governor.  In other words,

the Governor had the power to promulgate an Ordinance (Section 88) and also

enact an Act (Section 90) in exercise of his legislative powers.  

53. The significance of having two separate provisions, Section 88 and Section

90  of  the  Government  of  India  Act,  1935  is  that  this  Act  also  accepted  a

distinction between an Ordinance (having a limited life) and an Act (having a

‘permanent’ life until repeal).  An Ordinance would have a limited shelf life in

terms of Section 88 of the Government of India Act, 1935 and it would cease to

have any force and effect as an Act of the Provincial Legislature assented to by

the  Governor  after  the  expiry  of  its  shelf  life.  If  the  effect  of  an  Ordinance

promulgated by the Governor were to survive after the expiry of its shelf life for

an indefinite period, there would have been no occasion for enacting Section 90 26

Page 27

of  the  Government  of  India  Act,  1935  empowering  the  Governor  to  enact  a

Governor’s Act, since an appropriately drafted savings clause in an Ordinance

would serve the same purpose.       

54. Appreciating this distinction, the Constituent Assembly did away with the

extraordinary power of enacting an Act conferred on the Governor under Section

90  of  the  Government  of  India  Act,  1935.   However,  it  retained  the

impermanence of an Ordinance as is clear from a reading of Article 213 of the

Constitution.  The  retention  of  impermanence  is  also  clear  from a  reading  of

Article 213 of the Constitution in juxtaposition with some other provisions of the

Constitution.  For  example,  Article  357(2)  of  the  Constitution  (as  originally

framed) provided that  Parliament or  the President or  any other authority may

exercise the power of a State Legislature in making a law during a Proclamation

of an emergency issued under Article 356 of the Constitution.  However, that law

shall cease to have effect on the expiration of one year after the Proclamation has

ceased to operate “except as respects things done or omitted to be done before the

expiration  of  the  said  period  ……”  By  the  Constitution  (Forty-second

Amendment) Act, 1976 the period of one year was deleted and such law shall

continue in force until altered or repealed or amended by a competent Legislature

or other authority even after the Proclamation issued under Article 356 of the

Constitution has ceased to operate.

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55. Similar  provisions  excepting  things  done  or  omitted  to  be  done  (for  a

limited period of six months) are found in Article 249 and Article 250 of the

Constitution notwithstanding that a Resolution passed under Article 249 of the

Constitution  has  ceased  to  be  in  force  (in  the  case  of  Article  249  of  the

Constitution) or a Proclamation issued under Article 356 of the Constitution has

ceased to operate (in the case of Article 250 of the Constitution).

56. Although  Article  359(1-A)  of  the  Constitution  was  not  a  part  of  the

Constitution  as  originally  framed,  it  too  provides  for  saving  things  done  or

omitted to be done before the law ceases to have effect. Brother Chandrachud has

sufficiently dealt with these and other similar provisions of the Constitution and it

not necessary to repeat the views expressed in this regard.

57. It is clear, therefore, that in the absence of a savings clause Article 213 the

Constitution does not attach any degree of permanence to actions or transactions

pending or concluded during the currency of an Ordinance.   It is apparently for

this  reason  that  it  was  observed  in  Bhupendra  Kumar Bose that in  view of

Article 213(2)(a) of the Constitution an Ordinance cannot have a savings clause

which extends the life of actions concluded during the currency of the Ordinance.

58. Therefore,  there  is  a  recognizable  distinction  between  a  temporary  Act

which  can  provide  for  giving  permanence  to  actions  concluded  under  the

temporary  Act  and  an  Ordinance  which  cannot  constitutionally  make  such  a

provision.  The reason for this obviously is that a temporary Act is enacted by a 28

Page 29

Legislature while an Ordinance is legislative action taken by the Executive.  If

this distinction is not appreciated, the difference between a temporary Act and an

Ordinance  will  get  blurred.  With  respect,  it  appears  to  me  that  this  Court

overlooked this distinction in Bhupendra Kumar Bose.

59. Assuming  there  is  no  real  distinction  between a  temporary  Act  and an

Ordinance, I would then fall back on and respectfully agree with the view taken

in S. Krishnan that for actions concluded under an Ordinance to continue after its

shelf  life  is  over,  a  savings  clause  is  necessary.   However,  as  observed  in

Bhupendra  Kumar  Bose  (and  with  which  observation  I  have  no  reason  to

disagree)  an  Ordinance  cannot  provide  for  a  savings  clause  that  will  operate

beyond the life of the Ordinance in view of the provisions of Article 213(2)(a) of

the  Constitution.   Therefore,  such  an  assumption  would  really  be  of  no

consequence.  In other words, whichever way the issue is considered, it is clear

from the Constitution that concluded actions and transactions under an Ordinance

do not continue beyond the life of the Ordinance.

60. However, it must be made clear that there is obviously no constitutional

restraint on the State Legislature in enacting a law in terms of an Ordinance and

thereby giving permanence to it.  

Decision in Venkata Reddy extending Bhupendra Kumar Bose

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61. In Venkata Reddy this Court went a step further than Bhupendra Kumar

Bose and introduced the concept of irreversibility of a completed transaction as

against  the enduring character  of  a right or liability laid down in  Bhupendra

Kumar Bose.   The  decision  in  Venkata  Reddy  dealt  with  the  validity  of  the

Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984

(Ordinance 1 of 1984) promulgated by the Governor of Andhra Pradesh. As the

title of the Ordinance suggests, it abolished the posts of part-time village officers

in the State of Andhra Pradesh and provision was made for the appointment of

village assistants. One of the contentions raised in the writ petitions challenging

the  validity  of  the  Ordinance  was:  “The  Ordinance  having  lapsed  as  the

Legislature  did  not  pass  an  Act  in  its  place,  the  posts  which  were  abolished

should be deemed to have revived and the issue of  successive ordinances the

subsequent one replacing the earlier one did not serve any purpose.”

62. Rejecting this contention, this Court observed that if the requirements of

Article  213(2)(a)  of  the  Constitution  were  not  met,  then an  Ordinance  “shall

cease to operate” which “only means that it should be treated as being effective

till it ceases to operate on the happening of the events mentioned in clause (2) of

Article 213.” In other words, since an Ordinance shall have the same force and

effect as an Act of the Legislature of the State assented to by the Governor, it

would be operate as a law from the date of its promulgation till the date it ceases

to  operate.  This  is  quite  obvious  from  a  reading  of  Article  213(2)  of  the

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Constitution which makes it abundantly clear that an Ordinance has the ‘same

force and effect’ as an Act of the State Legislature assented to by the Governor.

Consequently, merely because an Ordinance ceases to operate by efflux of time or

is disapproved under Article 213(2)(a) of the Constitution does not void or efface

the actions and transactions concluded under it.  They are valid as long as the

Ordinance survives and “treated as being effective till it ceases to operate”.  

63. Venkata  Reddy however  introduced  an  entirely  new  dimension  to  the

‘force and effect’ of an Ordinance by extending the ‘enduring nature’ theory of

Bhupendra Kumar Bose and introducing the ‘irreversible effect’ theory. This was

propounded in the following words:

“Even  if  the  Ordinance  is  assumed to  have  ceased  to  operate  from a subsequent  date  by  reason  of  clause  (2)  of  Article  213,  the  effect  of Section 3 of the Ordinance was irreversible except by express legislation.”

This  Court  took  the  view that  the  abolition  of  the  posts  of  part-time  village

officers  in  the State  of  Andhra Pradesh was a  completed event  and therefore

irreversible. Consequently there was no question of the revival of these posts or

the petitioners continuing to hold these posts any longer. Yet this Court held that

the State Legislature was not powerless to restore the status quo ante by passing

an  express  law  operating  retrospectively  to  the  said  effect,  subject  to

constitutional limitations.  

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64. I am afraid it is difficult to accept this view. As it is, in view of Article

213(2) of the Constitution an Ordinance cannot, on its own terms, create a right

or  a  liability  of  an enduring or  irreversible  nature otherwise  an  extraordinary

power would be conferred in the hands of the Executive and the Governor of the

State which is surely not intended by our Constitution.  If such a power were

intended to be conferred upon the Executive and the Governor of the State, it

would be bringing in Section 90 of the Government of India Act, 1935 into our

Constitution through the back door.  

65. It seems to me that if a situation is irreversible, then it is irreversible. If a

situation could be reversed through the enactment of a retrospective law, then

surely the status quo ante  can be restored on the lapsing of  an Ordinance by

efflux of time or its disapproval by the Legislative Assembly. The same can be

said of an action or transaction of an enduring nature. Undoubtedly, there are a

few physical facts that are of an enduring nature or irreversible. For example, if

an  Ordinance  were  to  provide  for  the  imposition  of  the  death  penalty  for  a

particular offence and a person is tried and convicted and executed during the

currency of the Ordinance, then obviously an irreversible situation is created and

even if  the Ordinance lapses by efflux of time or is void, the  status quo ante

cannot  be restored.  So also  in  a  case of  demolition of  an ancient  or  heritage

monument by an Ordinance. Such physically irreversible actions are few and far

between and are clearly distinguishable from ‘legally irreversible’ actions.  

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66. There is a distinction between actions that are ‘irreversible’ and actions that

are reversible but a burden to implement.  The situations that arose in Bhupendra

Kumar  Bose  and  Venkata  Reddy  were  not  physically  irreversible  though

reversing them may have been burdensome. If elections are set aside or posts are

abolished, surely fresh elections can be held and posts revived. In this context, it

is  worth  recalling  that  should  the  need  arise,  as  in  Nabam Rebia  v.  Deputy

Speaker,  Arunachal  Pradesh  Legislative  Assembly10 this  Court  can  always

restore the status quo ante.  Bhupendra Kumar Bose and Venkata Reddy did not

present any insurmountable situation.

67. Therefore, I am not in a position to incorporate the ‘enduring nature’ or

‘irreversible  effect’  theory  in  an  Ordinance  or  even  the  public  interest  or

constitutional  necessity  theory.  In  a  given  situation,  the  State  Legislature  is

competent  to  pass  an  appropriate  legislation  keeping  the  interests  of  its

constituents in mind. To this extent, both Bhupendra Kumar Bose and Venkata

Reddy are overruled.  

Validity of the Ordinances

68. All the Ordinances have ceased to operate and nothing done under them

now survives after they have ceased to operate. The validity of the first  three

Ordinances was not challenged by the employees.   There is no material before

us, one way or the other, to hold that the promulgation of the first Ordinance and

10 (2016) 8 SCC 1 – Bench of 5 Judges 33

Page 34

its re-promulgation by the second and third Ordinances is invalid. Therefore, one

can only assume that the first three Ordinances are valid and the employees are

entitled to the benefits under them till the date these Ordinances ceased to operate

and not beyond, since these Ordinances were not replaced by an Act of the State

Legislature. I may mention, en passant, that it is not every re-promulgation of an

Ordinance that is prohibited by  D.C. Wadhwa v. State of Bihar.11  There is no

universal or blanket prohibition against  re-promulgation of an Ordinance, but it

should  not  be  a  mechanical  re-promulgation  and  should  be  a  very  rare

occurrence.   Additionally, a responsibility is cast on the Governor of a State by

the  Constitution  to  promulgate  or  re-promulgate  an  Ordinance  only  if  he  is

satisfied of the existence of circumstances rendering immediate action necessary.

There could be situations, though very rare, when re-promulgation is necessary,

but it is not necessary for me to delve into this issue insofar as the first three

Ordinances are concerned.

69. Only  the  fourth  and  subsequent  Ordinances  were  challenged  by  the

employees.  As far as the fourth and subsequent Ordinances are concerned, their

promulgation and re-promulgation was not adequately justified by the State of

Bihar despite a specific challenge. There was no immediate action required to be

taken  necessitating  the  promulgation  of  the  fourth  Ordinance  and  its

re-promulgation by subsequent Ordinances. I agree that the fourth Ordinance and

subsequent Ordinances should be struck down. 11 (1987) 1 SCC 378 – Bench of 5 Judges

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Relief

70. In the absence of any challenge to the first three Ordinances and since I

have  assumed  that  these  three  Ordinances  are  valid,  the  benefit  given to  the

employees  (such as  salary and perks)  by these  Ordinances till  they ceased to

operate are justified.    However, these three Ordinances did not and could not

grant  any enduring or  irreversible  right  or  benefits  to  the  employees  and the

employees did not acquire any enduring or irreversible right or benefits under

these three Ordinances. Any right or benefits acquired by them terminated when

the Ordinances ceased to operate.

71. Despite a specific challenge made to the fourth and subsequent Ordinances,

the State of Bihar has not justified their promulgation. They are therefore struck

down.  

72. The  directions  given  by  the  High  Court  for  payment  of  salary  (if  not

already  paid)  and  interest  thereon  need  not  be  disturbed.  The  reference  is

answered accordingly.

………………………..J     New Delhi;             ( Madan B. Lokur )     January  2, 2017

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R E P O R T A B L E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5875 OF 1994

KRISHNA KUMAR SINGH & ANR. ...PETITIONERS VERSUS

STATE OF BIHAR & ORS. ...RESPONDENTS

WITH CIVIL APPEAL NOS.5876-5890 OF 1994 WRIT PETITION (C) NO.580 OF 1995

CIVIL APPEAL NOS.3533-3595 OF 1995

O R D E R T.S. THAKUR, CJI.

1. I  have  had  the  advantage  of  reading  the  order proposed by my esteemed brother Dr. D.Y. Chandrachud, J. and the discordant note struck by Madan B. Lokur, J. to the same.  The genesis of the controversy giving rise to this reference to a larger bench has been elaborately  set  out  in  the  order  proposed  by

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Chandrachud, J. to which I can make no useful addition especially  when  the  narrative  is  both  lucid  and factually accurate. All that I need mention is that the seminal question that arises for our consideration is  whether  seven  successive  repromulgations  of  The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 suffer from any illegality or constitutional impropriety. The High Court of Patna has while dismissing the writ petition filed by the appellants seeking relief on the basis of the  said  ordinances  held  that  the  repeated repromulgation of the ordinances was unconstitutional. Relying upon the Constitution Bench decision of this Court in  D.C. Wadhwa and Ors. v. State of Bihar and Ors.  (1987) 1 SCC 378, the High Court has dismissed the writ petition but protected the appellants against any recovery of salaries already paid to them.  

2. The present appeal filed to assail the view taken by the High Court was initially heard by a Two-Judge Bench of this Court comprising Sujata V. Manohar and D.P.  Wadhwa,  JJ.  who  differed  in  their  opinions resulting in a reference of the appeal to a bench of

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Three-Judges who in-turn referred the same to a bench of  Five  Judges.  Since,  however,  doubts  were  raised about the correctness of the view expressed by this Court in two earlier Constitution Bench decisions in State of Orissa v. Bhupendra Kumar Bose (1962) Supp. 2 SCR  380  and  T.  Venkata  Reddy  v.  State  of  Andhra Pradesh (1985) 3 SCC 198, the matter was referred to a bench  of  Seven-Judges  for  an  authoritative pronouncement.   

3. In  the  order  proposed  by  Chandrachud,  J.,  his Lordship  has  dealt  with,  at  great  length,  several aspects that arise directly or incidentally for our adjudication  and  inter  alia concluded  that  seven successive  repromulgations  of  the  first  ordinance issued  in  1989  was  aUntitled  2  fraud  on  the Constitution especially when none of the ordinances were ever tabled before the Bihar Legislative Assembly as required under Article 213(2) of the Constitution. I am in complete agreement with the view expressed by my esteemed brother Dr. Chandrachud, J. that repeated repromulgation of the ordinances was a fraud on the Constitution  especially  when  the  Government  of  the

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time  appears  to  have  persistently  avoided  the placement of the ordinances before the legislature. In light of the pronouncement of this Court in D.C. Wadhwa’s case (supra), such repeated repromulgations were  legally  impermissible  which  have  been  rightly declared to be so by the High Court.  Even Lokur, J. has,  in  the  order  proposed  by  His  Lordship,  found repromulgated ordinances to be unconstitutional except for the first three ordinances which, according to His Lordship, survive not because they were unaffected by the vice of unconstitutionality but because they were not challenged by the petitioners.  The need for such a challenge did not in my opinion arise.  I say so with  respect  because  the  first,  second  and  third ordinances stood repealed by the subsequent ordinances issued by the Government.  At any rate, since the process of issuing the ordinances and repromulgation thereof was in the nature of a single transaction and a part of a single series on the same subject the vice of invalidity attached to any such exercise of power would  not  spare  the  first,  second  and  the  third ordinances which would like the subsequent ordinances

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be  unconstitutional  on  the  same  principle.  These ordinances provided the foundation for the edifice of the subsequent repromulgations.  If the edifice was affected, there is no way the foundation could remain unaffected  by  the  vice  of  unconstitutionality.   I would in that view agree with the conclusion drawn by Chandrachud,  J.  that  the  ordinances  in  question starting with Ordinance 32 of 1989 and ending with Ordinance 2 of 1992 were all constitutionally invalid, the fact that none of them was ever placed before the State legislature as required under Article 213 (2) of the  Constitution  of  India,  lending  support  to  that conclusion.   

4. The  next  question  then  is  whether  ordinances issued by the Government in exercise of its powers under Article 213 or for that matter 123 can create enduring  rights  in  favour  of  individuals  affected thereby.  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.  I also agree with the

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view that the Constitution Bench decision in Bhupendra Kumar Bose and T. Venkata Reddy (supra) to the extent the same extended the theory of “creation of enduring rights” to  legislation  by  ordinances  have  not  been correctly  decided  and  should  stand  overruled.   It follows that the ordinances issued in the instant case could not have created any enduring rights in favour of  Sanskrit  school  teachers  particularly  when  the ordinances  themselves  were  a  fraud  on  the Constitution.  The High Court and so also the views expressed by my esteemed brothers Madan B. Lokur and Chandrachud,  JJ.  on  this  aspect  are  in  my  opinion legally unexceptionable.  

5. That brings me to the question whether the benefit of salaries drawn by Sanskrit school teachers covered by the ordinances can be reversed and the amount so received by them, recovered by the State Government. Lokur, J. has taken the view that since the first three ordinances are valid, anything received by them during the currency of the said ordinance cannot be recovered.  Chandrachud,  J.  has  also  in  conclusion directed that no recovery of salaries which have been

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paid  shall  be  made  from  any  of  the  employees.   I concur with that direction, for in my opinion teachers who were paid their salaries under the ordinances 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 cannot 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.

6. The order proposed by Chandrachud, J. also deals with  several  other  aspects  including  the  question whether the obligation to place an ordinance before the legislature in terms of Article 213 and 123 is mandatory  and  whether  non-placement  of  ordinances before the Parliament and the State legislature as the case may be would itself constitute a fraud on the Constitution.   While  Chandrachud,  J.  has  taken  the view that placing of the ordinances is an unavoidable Constitutional  obligation  and  the  breach  whereof affects the efficacy of the ordinances, Lokur, J. has taken a different view.  In my opinion, the question

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whether placing the ordinance before the legislature is mandatory need not be authoritatively decided as this appeal and the Writ Petitions out of which the same arises can be disposed of without addressing that question.   Regardless  whether  the  requirement  of placing  the  ordinance  is  mandatory  as  held  by Chandrachud, J. or directory as declared by Lokur J., the repeated repromulgation of the ordinances were in the light of the pronouncement of this Court in D.C Wadhwa’s  case  constitutionally  impermissible  and  a fraud on the powers vested in the executive.  If that be so, as appears to be the case, the question whether the placement of the ordinances will per se render it unconstitutional, need not be gone into.  There may indeed be situations in which a repromulgation may be necessary without the ordinances having been placed before  the  legislature.  Equally  plausible  is  the argument that the constitution provides for the life of  ordinances  to  end  six  weeks  from  the  date  of re-assembly of the legislature, regardless whether the ordinances  has  or  has  not  been  placed  before  the house.   The  three  scenarios  which  Lokur,  J.  has

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referred to in his order are real life possibilities and ought to be addressed without giving rise to any anomalies.   This  may  require  a  deeper  deliberation which  can  be  undertaken  in  an  appropriate  case. Non-presentation of the ordinances before the State Legislature was, at any rate, only a circumstance to show that the executive had invoked the power vested in  it  without  complying  with  the  concomitant obligation  of  placing  the  ordinances  before  the legislature even when it had the opportunity to do so. The High Court was therefore right in holding that no relief on that basis could be granted to the writ petitioners. I would, in that view, leave the question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance  before  the  Parliament/legislature  open. With  these  few  lines  the  reference  shall  stand answered  in  terms  of  what  is  proposed  by  brother Chandrachud, J.

..................CJI. (T.S.THAKUR)

NEW DELHI; JANUARY 2, 2017.

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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5875 OF 1994

KRISHNA KUMAR SINGH & ANR .....APPELLANTS

Versus  

STATE OF BIHAR & ORS .....RESPONDENTS

WITH

CIVIL APPEAL Nos. 5876-5890 of 1994

WITH

W.P.(C) No. 580 OF 1995

WITH

CIVIL APPEAL Nos. 3533-3595 OF 1995

J U D G M E N T

Dr D Y CHANDRACHUD, J

A Re-promulgation of Ordinances : the background to the reference

A professor of economics who was pursuing his research on land tenures

in Bihar stumbled upon a startling practice. Ordinances were promulgated and

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re-promulgated  by  the  Governor  of  Bihar  –  two  hundred  fifty  six  of  them

between 1967 and 1981. These Ordinances were kept alive for long periods,

going upto fourteen years.  This academic research into the re-promulgation of

Ordinances became the subject of a book12 and a petition under Article 32 of

the  Constitution.   The  book  provided  the  backdrop  of  a  judgment  of  a

Constitution Bench of  this  Court  in  D C Wadhwa v.  State of  Bihar.13  The

Constitution Bench held that the practice which had been followed in the State

of  Bihar  was in  disregard  of  constitutional  limitations.  An exceptional  power

given to the Governor to make Ordinances in extra-ordinary situations had, in

the manner of its exercise, taken over the primary law making function of the

legislature  in  the  state.  The  Constitution  Bench  deprecated  the  rule  by

Ordinances: the ‘Ordinance-raj’14.   

2 The judgment of the Constitution Bench was delivered on 20 December

1986.  Barely three years after the decision, the Governor of Bihar promulgated

the first of the Ordinances which is in issue in this case, providing for the taking

over of four hundred and twenty nine Sanskrit schools in the state. The services

of teachers and other employees of the school were to stand transferred to the

state government subject to certain conditions (which would be elaborated upon

later in this judgment).  The first  Ordinance was followed by a succession of

Ordinances.  None of  the  Ordinances,  which were issued in  exercise  of  the

power of the Governor under Article 213 of the Constitution, were placed before

12Re-promulgation of Ordinance: A fraud on the Constitution of India 13 (1987) 1 SCC 378 14[ Id. at paragraph 8, page 395]

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the state legislature as mandated. The state legislature did not enact a law in

terms of the Ordinances. The last of them was allowed to lapse.   

3 Writ proceedings were initiated before the Patna High Court by the staff

of the Sanskrit schools for the payment of salaries. Those proceedings resulted

in a judgment of the Patna High Court. When the appeal against the decision of

the High Court came up before a Bench of two judges of this Court in Krishna

Kumar Singh v.  State of Bihar15, both the judges – Justice Sujata Manohar

and  Justice  D  P  Wadhwa  -  agreed  in  holding  that  all  the  Ordinances,

commencing  with  the  second,  were  invalid  since  their  promulgation  was

contrary  to  the  constitutional  position  established  in  the  judgment  of  the

Constitution Bench.  Justice Sujata Manohar held that the first Ordinance was

also invalid being a part of the chain of Ordinances. Justice Wadhwa, however,

held that the first Ordinance is valid and that its effect would endure until it is

reversed  by  specific  legislation.  The  difference  of  opinion  between  the  two

judges  was  in  their  assessment  of  the  constitutional  validity  of  the  first

Ordinance; one of them holding that it is invalid while the other held it to be

constitutional.

4    When the case came up before a Bench of three judges16, it was referred to

a Bench of five judges on the ground that it raised substantial questions relating

to the Constitution.17  The proceedings before the Constitution Bench on 23

November  2004  have  resulted  in  a  reference  to  a  larger  Bench  of  seven

15(1998) 5 SCC 643 16Justices SP Bharucha, GB Pattanaik and S RajendraBabu 17Order dated 6 November 1999 in CA 5875 of 1994

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Judges.  The  basis  of  the  reference  is  best  understood  from  the  order  of

reference which reads thus :

“During  the  course  of  hearing,  Mr.  P.P.  Rao, learned  senior  counsel  for  the  appellants  placed reliance on the decisions of this Court in State of Orissa vs. Bhupendra Kumar Bose, 1962 (Supp.2) SCR 380 and T.Venkata Reddy and Ors. vs. State of  Andhra  Pradesh,  1985  (3)  SCC  198.  The learned Solicitor General brought to the notice of this Court the decision in State of Punjab vs. Sat Pal  Dang  &  Ors.,  1969  (1)  SCR  478.  All  these decisions  are  Constitution  Bench  decisions. Mr.Rakesh Dwivedi, learned senior counsel for the respondent-State  of  Bihar,  however,  relied  on  a 9-Judge  Bench  decision  of  this  Court  in  S  R Bommai and Ors. vs. Union of India and Anr., 1994 (3) SCC 1 and in particular paragraphs 283 to 290 thereof.  

We are of the opinion that these matters call  for hearing by a 7-Judge Bench of this Court. Be listed accordingly.”

As the above extract  indicates,  the three decisions of  Constitution Benches

which have been noticed are those in  Bhupendra Kumar Bose,  T Venkata

Reddy and Satpal Dang. The nine judge Bench decision in Bommai was relied

upon, on the other hand by counsel for the State.  Bommai, it has been urged,

warrants a reconsideration of the earlier decisions. That has given rise to the

reference.

B     The Ordinances

5 The first Ordinance, called The Bihar Non-Government Sanskrit Schools

(Taking Over of Management and Control) Ordinance, 1989 – was promulgated

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by the Governor of Bihar on 18 December 198918.  The Ordinance contains a

recital of the satisfaction of the Governor that :

“44….circumstances  exist  which  render  it necessary for him to take immediate action for the taking over of non-government Sanskrit schools for management and control by the State Government for  improvement,  better  organization  and development of Sanskrit education in the State of Bihar.”   (Id at pg.665)

Clause 3 of the Ordinance provided for the taking over of the management and

control of four hundred and twenty nine Sanskrit schools (named in Schedule 1)

by the state government. Clause 3 was as follows :

“3.  Taking  over  of  management  and  control  of non-government  Sanskrit  schools  by  State Government  –  (1)  With  effect  from  the  date  of enforcement  of  this  Ordinance  429,  Sanskrit schools mentioned in Schedule 1 shall vest in the State Government and the State Government shall manage and control thereafter.  

(2) All the assets and properties of all the Sanskrit schools  mentioned  in  sub-section  (1)  and of  the governing bodies, managing committees incidental thereto whether moveable or immovable including land,  buildings,  documents,  books  and  registers, cash-balance,  reserve  fund,  capital  investment, furniture and fixtures and other things shall, on the date of taking over, stand transferred to and vest in the  State  Government  free  from  all encumbrances.”

Clause 4 made a provision for the transfer to the state government of those

teaching  and  non-teaching  employees  of  the  schools  who  were  appointed

18Ordinance 32 of 1989 49

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permanently  or  temporarily  against  sanctioned posts in  accordance with the

prescribed standard and staffing pattern prescribed by the state government

prior to the Ordinance.  Staff in excess of the sanctioned strength and those not

possessing  the required qualifications  or  fitness were to stand automatically

terminated. Clause 4 was in the following terms :

“4   Effect  of  taking  over  the  management  and control-(1) With effect from the date of vesting of Sanskrit  schools mentioned in  Schedule 1 under Section 3(1) in the State Government, the services of all those teaching and non-teaching employees of the schools mentioned in Schedule 1, who have been  appointed  permanently/temporarily  against sanctioned posts in accordance with the prescribed standard,  staffing  pattern  as  prescribed  by  the State  Government  prior  to  this  Ordinance  shall stand  transferred  to  the  State  Government.  He shall  be employee of the State Government with whatsoever designation he holds:

Provided,  that  the  services  of  those  teaching  or non-teaching employees who are in excess of the sanctioned strength or do not possess necessary fitness/  qualification  shall  automatically  stand terminated.  

(2) Teachers of the Sanskrit schools taken over by the Government shall be entitled to the same pay, allowances and pension etc. as are admissible to teaching  and  non-teaching  employee  of  the taken-over secondary schools of Bihar”.

Under clause 5, management and control of the schools taken over by the state

government was to remain with the Director of Education of the Government,

incharge of  Sanskrit  Education.  The Ordinance made provisions  for, among

other things, the  constitution of managing committees (clause 6), powers and

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functions  of  managing  committees (clause 7),  functions of  the Headmasters

(clause 8), accounts and audit of the Sanskrit schools taken over by the State

Government (clause 9), constitution of a Sanskrit Education Committee relating

to development of Sanskrit  education in the State (clause 10),  offences and

penalties  for  contravention  of  the  provisions  of  the  Ordinance  (clause  11),

cognizance of  offences (clause 12),  protection  of  action  taken in  good faith

(clause 13), power to make rules (clause 14) and power to remove difficulties

(clause 15).The schedule to the Ordinance listed out four hundred and twenty

nine Sanskrit schools situated in several districts of the state.  Along side each

school was the strength of standard teaching and non-teaching staff.

6 Ordinance 32 of 1989 was promulgated on 16 December 1989 and was

published in the Bihar Gazette Extra ordinary on 18 December 1989. The life of

the  first Ordinance19 was for a period of two months and two weeks since by

virtue of the provisions of Article 213(2)(a) it ceased to operate at the expiration

of six weeks from the reassembling of the legislature. The session of the Vidhan

Sabha concluded on 25 January 1990. On 28 January 1990 the second in the

succession of Ordinances was promulgated. The next session of the Vidhan

Sabha was held between 16 March 1990 and 30 March 1990. On 2 May 1990

the third in the succession of Ordinances20 was promulgated. The next session

of the Vidhan Sabha took place between 22 June 1990 and 9 August 1990, as a

19The Vidhan Sabha was convened for its 11th session which lasted from 29 June 1989 to 3 August 1989 after the   Ordinance was promulgated, the 12th Session of the Vidhan Sabha commenced on 18 January 1990. 20Ordinance 14 of 1990.

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result  of  which the life  of  the Ordinance was about  three months.  The first,

second and third Ordinances were in similar terms.

7 On 13 August 1990 the Governor promulgated a fresh Ordinance.21 This

Ordinance  contained  in  clauses  3  and  4,  provisions  which  were  materially

different from those of the first three Ordinances.  Clauses 3 and 4 provided as

follows :-

“3 Taking  over  of  management  and  control  of non-government  Sanskrit  schools  by  State Government.—(1)  With  effect  from  the  date  of enforcement  of  this  Ordinance,  429  Sanskrit schools mentioned in Schedule 1 shall vest in the State Government and the State Government shall manage and control thereafter….

But the Sanskrit schools mentioned in Annexure 1 of this Ordinance will be investigated through the Collector concerned and if  it  will  be found in the report  of  the Collector that  such school is not in existence,  in  this  case  State  Government  will remove the name of that school from Annexure 1 of  the  Ordinance  through  notification  in  State Gazette.

(2) All the assets and properties of all the Sanskrit schools,  mentioned in sub-section (1) and of the governing  bodies,  managing  committees, incidental thereto whether moveable or immovable including lands, buildings, documents, books and registers,  cash-balance,  reserve  fund,  capital investment, furniture and fixture and other things, shall on the date of taking over, stand transferred to and vest in the State Government free from all encumbrances.

4. Effect  of  taking  over  the  management  and control.—(1)  The  staff  working  in  the  Sanskrit schools mentioned in Annexure 1 of the Ordinance related  to  integration  of  its  management  and control into the State Government as per Schedule

21Ordinance 21 of 1990 52

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3(1), will not be the employees of this school until and unless the Government comes to a decision regarding their services.

(2) State Government will appoint a Committee of specialists  and  experienced  persons  to  enquire about  the  number  of  employees,  procedure  of appointment  as  well  as  to  enquire  about  the character of the staff individually and will come on a  decision  about  validity  of  posts  sanctioned  by governing  body  of  the  school,  appointment procedure and affairs of promotions or confirmation of  services.  Committee will  consider the need of institution  and  will  submit  its  report  after  taking stock  of  the  views  regarding  qualification, experience  and  other  related  and  relevant subjects.  Committee  will  also  determine  in  its report whether the directives regarding reservation for SC, ST and OBCs has been followed or not.

(3) State Government, after getting the report, will determine the number of staff as well as procedure of  appointments  and  will  go  into  the  affair  of appointment  of  teaching  and  other  staff  on individual basis and in the light of their merit and demerit will determine whether his service will be integrated  with  the  Government  or  not. Government will also determine the place, salary, allowances and other service conditions for them”.

Clause 16 provided for repeals and savings in the following terms:

“16. Repeal  and  savings.—(1)  The  Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1990 (Bihar Ordinance 14, 1990) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any  action  taken  in  exercise  of  the  powers conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the date on which such thing was done or action taken.”  

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Since the next session of the Vidhan Sabha commenced on 22 November 1990

the life of the Ordinance was about four months and two weeks.  The fifth in the

series of Ordinances22 was promulgated on 8 March 1991. The session of the

Vidhan Sabha took place between 21 June 1991 and 2 August 1991.  Soon

after the conclusion of the session the sixth in the series of Ordinances was

promulgated on 8 August 1991.23  The next session of the Vidhan Sabha took

place from 1 December 1991 to 18 December 1991. Upon the conclusion of the

session, the seventh of the Ordinances was promulgated on 21 January 1992.24

The session of the Vidhan Sabha took place between 20 March 1992 and 27

March 1992.  The Ordinance lapsed on 30 April 1992.

8       The Ordinances promulgated by the Governor followed a consistent

pattern.  None of the Ordinances was laid before the legislature. Each one of

the Ordinances lapsed by efflux of time, six weeks after the convening of the

session of the legislative assembly. When the previous Ordinance ceased to

operate, a fresh Ordinance was issued when the legislative assembly was not

in session. The legislative assembly had no occasion to consider whether any

of the Ordinances should be approved or disapproved. No legislation to enact a

law along the lines of the Ordinances was moved by the government in the

legislative assembly. The last of the Ordinances, like its predecessors, cease to

operate as a result of the constitutional limitation contained in Article 213 (2)(a).

22Ordinance 10 of 1991 23Ordinance 31 of 1991 24Ordinance 2 of 1992

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The  subject  was  entirely  governed  by  successive  Ordinances;  yet  another

illustration of what was described by this Court as an Ordinance raj barely three

years prior to the promulgation of the first in this chain of Ordinances.  

C     Proceedings before the High Court

9 The High Court framed the following issues for consideration :

(i) Whether the Sanskrit schools stood denationalised upon the expiry of

the Ordinances; (ii) Whether  as  a  result  of  clause  4  of  the  fourth  Ordinance25 the

employees had ceased to be government servants which they have

become in terms of the first Ordinance26 promulgated on 18 December

1989; (iii) Whether  the  fourth  Ordinance  was  ultra  vires Article  14  of  the

Constitution; (iv) Whether the services of the teachers must be regularised and  they

ought to be treated as government servants; and (v) Whether, in any event the petitioners were entitled to their salaries and

emoluments.   

10     The High Court held that there was no permanent vesting of the schools

in the State of Bihar, notwithstanding the expiry of the Ordinances. In the view

of the High Court,  the power to promulgate Ordinances is not a rule but an

exception and is conferred upon the Governor to deal with emergent situations.

The  High  Court  held  that  in  the  present  case there  was  a promulgation  of

successive Ordinances contrary to the decision of the Constitution Bench in D

C  Wadhwa.  Moreover,  none  of  the  Ordinances  has  been  laid  before  the

25Ordinance 21 of 1990 26Ordinance 32 of 1989

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legislature. As a result, the legislature was deprived of its authority to consider

whether the Ordinances should or should not be approved. The High Court held

that  the  failure  to  comply  with  the  constitutional  obligation  to  place  the

Ordinances before the legislature would have consequences: the Ordinances

which were re-promulgated repeatedly were ultra vires and the petitioners had

derived no legal right to continue in the service of the state. The High Court

noted that the fourth Ordinance made a departure from the earlier Ordinances

since the state government had found that many teachers who did not fulfil the

requisite criteria would have become government servants. It was, in the view

of the High Court,  permissible for the state to modify a provision which had

been made in an earlier Ordinance and only those who passed the rigours of

the  provisions  made  in  the  fourth  Ordinance  were  to  become  government

servants.  This  finding  was  subject  to  the  basic  conclusion  that  all  the

Ordinances were unconstitutional. On the aspect of whether directions for the

payment of salary were warranted, the High Court noted that upon inquiry three

hundred and five schools were found to be genuine, while at least one hundred

and one did not fulfil the criterion for being taken over. The High Court held that

the petitioners  were entitled  to salary  as government  servants  until  30 April

1992, the last date of the validity of the Ordinances, for the period during which

the Ordinances had subsisted. The High Court finally held that in terms of its

findings  the  management  of  the  schools  would  be  governed  in  the  same

manner that prevailed prior to the promulgation of the first Ordinance.   

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D The two differing judgments

11 Before the Bench of two judges of this Court27, there was an agreement in

the two separate judgments delivered by Justice Sujata V Manohar and Justice

D P Wadhwa that commencing with the second ordinance, the re-promulgated

Ordinances were  ultra vires. Justice Sujata Manohar held that the manner in

which a series of Ordinances was promulgated by the State of Bihar constituted

a fraud on the Constitution.  In the view of the learned judge :

“24. ... The State  of  Bihar  has not  even averred that any immediate action was required when the 1st Ordinance was promulgated. It has not stated when the Legislative Assembly was convened after the  first  Ordinance  or  any  of  the  subsequent Ordinances, how long it  was in session, whether the Ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme  does  not  permit  this  kind  of  Ordinance Raj. In my view, all the Ordinances form a part of a chain  of  executive  acts  designed  to  nullify  the scheme of Article 213. They take colour from one another  and  perpetuate  one  another,  some departures  in  the  scheme  of  the  4th  and subsequent  Ordinances  notwithstanding.  All  are unconstitutional and invalid particularly when there is no basis shown for the exercise of power under Article 213. There is also no explanation offered for promulgating one Ordinance after  another. If  the entire exercise is a fraud on the power conferred by  Article  213,  with  no  intention  of  placing  any Ordinance  before  the  legislature,  it  is  difficult  to hold that the first Ordinance is valid, even though all the others may be invalid”. (Id at pg.658)

27The Referring judgment is reported in (1998) 5 SCC 643: See paragraph 24 at page 161 57

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Alternatively, on the hypothesis that the first Ordinance was valid, Justice Sujata

Manohar held that it would have ceased to operate upon the lapse of a period

of six weeks of the reassembling of the state legislature.  Any effect that the

Ordinance had would come to an end when it ceased, unless it is permanent.

Addressing the issue of what is meant by a permanent effect or a right of an

enduring nature which subsists beyond the life of an Ordinance, the learned

Judge held thus :

“30...  Every  completed  event  is  not  necessarily permanent. What is done can often be undone. For example, what is constructed can be demolished. A benefit  which is conferred can be taken away. One should not readily assume that an Ordinance has a permanent effect, since by its very nature it is  an exercise of  a limited and temporary power given  to  the  executive.  Such  a  power  is  not expected to be exercised to bring about permanent changes unless the exigencies of the situation so demand. Basically, an effect of an Ordinance can be considered as  permanent  when that  effect  is irreversible  or  possibly, when  it  would  be  highly impractical or against public interest to reverse it, e.g.,  an  election  which  is  validated  should  not again become invalid. In this sense, we consider as  permanent  or  enduring  that  which  is irreversible. What is reversible is not permanent.” (Id at pg.660)

In this view, when the Ordinance taking over private schools lapsed, the status

quo ante would revive. The first Ordinance was held not to have any permanent

effect. Hence, even if the first Ordinance were to be valid (which in the view of

the learned judge it was not), the teachers could be considered as government

servants  only  for  its  duration.  Moreover,  it  was held  that  nothing  was done

under the first Ordinance; the inquiry for the purpose of take over under the 58

Page 59

fourth Ordinance could not  be completed as a result  of  an interim stay and

since all  the Ordinances had ceased to operate and none of them could be

considered as permanent in effect, no directions could be given for enforcing

them.

12 Justice D P Wadhwa, on the other hand differed with the view of Justice

Sujata  Manohar  in regard to the validity  of  the first  Ordinance.  The learned

Judge formulated his reasons in the following propositions :

“59....(1)  It  is  fairly  established that  Ordinance is the “law” and should be approached on that basis.

(2) An Ordinance which has expired has the same effect as a temporary Act of the legislature.

(3)  When  the  Constitution  says  that Ordinance-making power is a legislative power and an Ordinance shall have the same force as an Act, an  Ordinance  should  be  clothed  with  all  the attributes of an Act of the legislature carrying with it all  its  incidents,  immunities and limitations under the  Constitution  and  it  cannot  be  treated  as  an executive action or an administrative decision.

(4)  Regard  being  had  to  the  object  of  the Ordinance and the right created by it, it cannot be said  that  as  soon  as  the  Ordinance  expired  the validity of an action under the Ordinance came to an end and invalidity of that action revived.

(5)  What  effect  of  expiration  of  a  temporary  Act would be must depend upon the nature of the right or  obligation  resulting  from the  provisions  of  the temporary  Act  and  upon  their  character  whether the said right and liability are enduring or not.

(6) If the right created by the temporary statute or Ordinance is of enduring character and is vested in

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the  person,  that  right  cannot  be  taken  away because the statute by which it  was created has expired.

(7)  A person  who  has  been  conferred  a  certain right or status under temporary enactment cannot be deprived of that right or status in consequence of the temporary enactment expiring.

(8)  An  Ordinance  is  effective  till  it  ceases  to operate on the happening of the events mentioned in clause (2)  of  Article  213.  Even if  it  ceased to operate, the effect of the Ordinance is irreversible except by express legislation.

(9)  A mere  disapproval  by  the  legislature  of  an Ordinance  cannot  revive  closed  or  completed transactions.

(10) State Legislature is not powerless to bring into existence the same state of affairs as they existed before an Ordinance was passed even though they may be completed and closed matters under the Ordinance.  An  express  law  can  be  passed operating  retrospectively  to  that  effect  subject  to other constitutional limitations.” (id at pgs.677-678)

In the view of the learned Judge :

“67..... The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its effect was irreversible. The Ordinance was promulgated to achieve a particular object  of  taking over  the Sanskrit  schools in  the State  including  their  assets  and  staff  and  this having been done and there being no legislation to undo  the  same  which  power  the  legislature  did possess,  the  effect  of  the  Ordinance  was  of permanent  nature.  The  Ordinance  is  like  a temporary law enacted by the legislature and if the law  lapses,  whatever  has  been  achieved  there under  could  not  be  undone,  viz.,  if  under  a temporary  law  land  was  acquired  and  building constructed thereon, it could not be said that after the  temporary  law lapsed  the  building  would  be

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pulled down and land reverted back to the original owner”. (Id at pg.683)

In this view, rights which had been vested could not be taken away unless the

legislature was to enact a law taking them away and re-vesting the property in

the managing committee. The rights which had vested in the employees were

held to be of an enduring character which, it was held, could not be taken away

merely  because the Ordinance,  like  a temporary  statute  ceased to operate.

Justice Wadhwa thus approached the matter in dispute from two perspectives.

Firstly, the Ordinance was placed on the same footing as a temporary statute

and was held to have created rights of an enduring character that would survive

the  Ordinance  upon  its  ceasing  to  operate.  Secondly, vested  rights  created

under the Ordinance could, in this view, be reversed only by a fresh legislation

enacted by the legislature. The essential difference between the perspectives of

the two judges was precisely this: while Justice Sujata Manohar held that all the

Ordinances  were  part  of  a  chain  of  promulgation  and  re-promulgation  and

constituted a fraud on the Constitution, Justice Wadhwa held that it was only

the  re-promulgation  after  the  first  Ordinance  that  was  ultra  vires.  The  first

Ordinance was in his  view a valid exercise of  constitutional  power and had

created enduring rights which would continue even after the Ordinance ceased

to operate. This enduring consequence could only be reversed by legislation.   

13 Now it is in this background that it would be necessary to advert to the

evolution and scope of the Ordinance making power.

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E Historical evolution

E.1     England

14 In  the  United  Kingdom,  the  prerogative  of  the  Monarch  to  legislate

domestically was set at rest about four hundred years ago by Sir Edward Coke

by his opinion in The Case of Proclamations.28. The opinion ruled that :

“The  King  by  his  proclamation  or  other  ways cannot  change  any  part  of  the  common law, or statute law, or the customs of the realm”.

The Law of England, it held, is divided into three parts : common law, statute

law and custom. The King’s proclamation was held to be none of the above.

The King, it was ruled, had no prerogative but that which the law of the land

allowed him. The vestiges of  the power of the King to legislate upon British

citizens were wiped out by the Bill of Rights in 1689 or in any event, by 1714.

In his judgment in Pankina v Secretary of State for the Home Department,29

Lord Justice Sedley speaking for the Court of Appeal observed :

“The  exercise  of  the  Monarch’s  prerogative  has passed since 1689 – or perhaps more precisely, as Anson’s  Law  and  Custom  of  the  Constitution suggests, since 1714 – to ministers of the Crown. It is they who are now constitutionally forbidden to make  law  except  with  the  express  authority  of Parliament: hence their need for statutory power to make  delegated  legislation.   As  Lord  Parker  of Waddington said in The Zamora [1916] 2 AC 77, 90:

“The  ideas  that  the  King  in Council,  or indeed any branch of the  executive,  has  power  to

28(1611) 12 Co Rep 74 29[2010] 3 WLR 1526

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prescribe  or  alter  the  law  to  be administered by the courts of law in this country is out of harmony with  the  principles  of  our Constitution”.” (emphasis supplied)

15 Tracing  the  evolution  of  the  King’s  power  to  make  proclamations  in

England  following  the  opinion  of  Sir  Edward  Coke,  Shubhankar  Dam  in  a

recently published work on the subject30 observes:

“Although the decision brought conceptual clarity, regal practice varied.  Monarchs continued making Ordinances  (of  the  unlawful  kind)  and  enforced them  too.   Only  with  the  establishment  of parliamentary supremacy towards the end of the seventeenth  century  did  the  law and  practice  of Ordinances  finally  become consistent;  from then on,  it  would  always  be  a  subordinate  legislative power...By  the  close of  the  seventeenth  century, statutes represented parliament’s ultimate authority to enact legislation whereas Ordinances, generally speaking, came to represent the executive’s more limited  authority  to  make  narrow  and  specific regulations”.

E.2 British India

16 The  dilution  of  the  power  of  the  Monarch  in  England  to  rule  by

proclamations  was  in  sharp  contrast  to  the  position  which  prevailed  in  the

British colonies. The Governor Generals as representatives of the Crown were

vested with extensive authority to issue Ordinances. The Indian Councils Act,

1861 empowered the Governor General to issue directions which had the force

of law. A power was conferred upon the Governor General to issue ordinances 30Shubhankar Dam – “Presidential Legislation in India The Law and Practice of Ordinances [Cambridge University  Press – page 144 at pages 37, 38]

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by Section 23, subject to two conditions : (i) the power could be exercised in

cases of emergency; and (ii) an Ordinance would remain in force for a period of

not more than six months from its promulgation. Under the Government of India

Act, 1915, the power to issue Ordinances was retained. In the Government of

India Act, 1935, Section 42 empowered the Governor General to promulgate

ordinances when the Federal Legislature was not in session provided that he

was satisfied that circumstances existed which made it necessary that such a

law be passed without awaiting reassembly of the legislature.  Section 42(2)

provided that an Ordinance promulgated under that provision would have the

same force and effect as an Act of the Federal Legislature but was required to

be laid before the legislature. The Ordinance would cease to operate upon the

expiration of six weeks from the reassembly of the legislature or if before that

period,  resolutions  disapproving  it  were  passed  by  the  legislature.  The

Governor  General  was  in  certain  cases  required  to  exercise  his  individual

judgment for the promulgation of an Ordinance while in others, he was to act on

the instructions of His Majesty. Section 43 enabled the Governor General  to

issue Ordinances valid for a period of six months and extendable by a further

period of six months if he was satisfied that circumstances existed rendering it

necessary  for  him  to  take  immediate  action  to  enable  him  to  satisfactorily

discharge such functions in respect of which he was to act in his discretion or

individual  judgment.  Under  Section  44,  the  Governor  General

was vested with power to enact in the form of a Governor General’s Act,   a law

containing such provisions and to attach to his message to the chambers of the

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legislature  a  draft  bill  which  he  considered  necessary.  Similar  powers  were

vested in the provincial Governors. Wide powers were hence conferred upon

the Governor General by Sections 42, 43 and 44.

F Constituent Assembly

17 The  Union  Constitution  Committee  was  appointed  by  the  Constituent

Assembly on 30 April 1947 to report on the ‘main principles of the Constitution’.

The memorandum which was prepared by B N Rau, the constitutional advisor

envisaged  a  constitutional  power  for  making  ordinances.  The  memorandum

contemplated  that  the  President  may  promulgate  an  ordinance  when

Parliament  is  not  in  session,  upon  satisfaction  that  circumstances  exist

requiring  immediate  action.  The  ordinance  would  have  the  same force  and

effect as an Act of Parliament but would remain in force for a period not more

than six weeks from the reassembly of Parliament [see in this context B Shiva

Rao:  The Framing of India’s Constitution31].  B N Rau acknowledged that

ordinances were the subject of great criticism under colonial rule but sought to

allay the apprehensions which were expressed on the ground that the President

would normally act on the aid and advice of ministers responsible to Parliament

and was not likely to abuse the ordinance making power.

18 After the report of the Union Constitution Committee was submitted to the

Constituent Assembly, the ordinance making power came up for discussion on

23 May 1949. Professor K T Shah observed that however justified such a power

31Universal Law Publishing New Delhi (2006) Vol.II page 485 65

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may appear to be it was “a negation of the rule of law”. He therefore suggested

that the power should be so structured as to retain an extraordinary character to

deal with emergent situations :

“…Of course in extraordinary circumstances, as in the case of an emergency, the use of extraordinary powers  would  be both  necessary  and justified.  I think that it is important, therefore to make it clear, in  the  heading  itself  that  this  is  an  avowedly extraordinary  power  which may take the form of the  legislation  without  our  calling  its  legislative power.  Legislative  power  the  executive  head should not have. Or it may even take the form of an  executive  decree  or  whatever  form  seems appropriate in the circumstances. The point that I wish to stress is that we must not, by any mention here  imply  or  convey  or  suggest  that  the  law making  powers  of  the  President  are  any  but extraordinary  powers.  I  think  this  is  sufficiently clear, and will be acceptable to the House.”  

Another  member  of  the  Constituent  Assembly,  B  Pocker  Sahib,  moved  an

amendment for the inclusion of a proviso in draft Article 102(1) in the following

terms  :

“Provided  that  such  ordinance  shall  not  deprive any citizen of his right to personal liberty except on conviction after trial by a competent court of law.”

This amendment was moved with a view to securing the fundamental right of

the citizen to be tried by a court of law.  

19 H V Kamath moved an amendment that would ensure that an ordinance

upon promulgation shall be laid before both Houses of Parliament within four

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weeks of  its  promulgation.  This,  he observed,  was necessary  to restrict  the

ordinance making power “as far as we can” and to provide “a constitutional

safeguard against the misuse of this article”. This objection was responded to

by observing that since Parliament had to be convened atleast twice every year

and not more than six months would intervene between the last sitting and the

date  appointed  for  the next  session,  an  ordinance could  not  continue for  a

period of more than seven and a half months.  

20 Pandit H N Kunzru moved an amendment to the effect that the tenure of

an ordinance should not exceed thirty days from its promulgation (instead of six

weeks  from  the  reassembly  of  Parliament).  He  observed  that  there  were

several countries in which the executive did not possess an ordinance making

power and there was no justification “in the new circumstances” for arming the

executive  with  wide  powers  of  the  nature  that  were  conferred  by  the

Government of India Act, 1935. He opined that the duration of seven and a half

months was too long for the operation of an ordinance. Kunzru observed :

“…..I think therefore that the period should be long enough  to  enable  the  legislature  to  meet  and consider  the  extraordinary  situation  requiring  the promulgation  of  an  Ordinance,  at  any  rate  an Ordinance made necessary by factors affecting the peace or security of the country.”

“But when the ordinance relates to the peace or security of the country, or to similar circumstances, requiring extraordinary action to be taken by the executive  under  an  Ordinance,  then  I  think,  we have  to  see  that  the  period  during  which  the Ordinance remains in force is as short as possible, and  that  any  legislation  that  may  be  required

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should  be  passed  by  Parliament  after  a  due consideration of all the circumstances.”

“It is therefore necessary that the legislature should be given an opportunity, not merely of considering the situation requiring the passing of an Ordinance, but also the terms of the Ordinance.”

21 Professor K T Shah expressed the view that even if an ordinance was

issued to meet extraordinary circumstances, it must be laid immediately upon

the assembling of Parliament and must cease to operate forthwith unless it was

approved  by  a  specific  resolution.  He  supported  the  restriction  which  he

proposed on the following grounds :

“Most of us, I am sure, view with a certain degree of  dislike or distrust  the ordinance-making power vested in the Chief Executive.  However, we may clothe it, however it may necessary, however much it may be justified, it is a negation of the rule of law. That is to say, it  is not legislation passed by the normal Legislature, and yet would have the force of law  which  is  undesirable.   Even  if  it  may  be unavoidable, and more than that, even if it may be justifiable in the hour of the emergency, the very fact that it is an extraordinary or emergency power, that it is a decree or order of the Executive passed without  deliberation  by  the  Legislature,  should make it clear that it cannot be allowed, and it must not be allowed, to last a minute longer than such extraordinary circumstances would require.”

22 Sardar Hukam Singh moved an amendment which provided for the need

for consulting the Council of Ministers :

“It  may  be  said  that  conventions  would  grow automatically and the President shall have to take the advice of his Ministers. My submission is that here  conventions  have  yet  to  grow.   We  are making our President the constitutional head and we are  investing  him with  powers  which  appear

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dictatorial.  Conventions would grow slowly and as this constitution is written and every detail is being considered,  why  should  we  leave  this  fact  to caprice or whim of any individual, however high he may be? If we clearly put down that he is to act on the advice of his Ministers, it is not derogatory to his position.”

23 The amendments which were proposed were opposed by P S Deshmukh

and Dr B R Ambedkar. P S Deshmukh observed that the draft  article had a

provision  that  if  and  so  far  as  an  ordinance  made  any  provision  which

Parliament would not under the Constitution be competent to enact, it shall be

void.  Dr  Ambedkar,  opposing  the  amendments,  observed  that  while  the

Governor General under Section 43 of the Government of India Act, 1935 was a

parallel  legislative  authority  with  an  independent  power  of

legislation even when Parliament was in session draft Article 102 conferred an

ordinance making power upon the President only when the legislature was not

in session. Justifying the conferment of the power Dr Ambedkar observed thus :

“My submission to the House is that it  is not difficult  to imagine cases where the powers conferred by the ordinary law existing at any particular  moment may be deficient  to  deal  with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation arisen, which it must deal with ex hypothesi it has not got the power to deal with that in the existing code of law.  The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it  cannot resort to the ordinary  process  of  law  because,  again  ex  hyhpothesi,  the legislature is not in session.”   

24   Dr  Ambedkar  rejected  the  suggestion  that  an  ordinance  should

automatically  come  to  an  e-nd  upon  the  expiry  of  thirty  days  from  its

promulgation. The objections expressed by H N Kunzru to the duration of an 69

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ordinance  were  not  accepted  on  the  ground  that  Parliament  had  to  be

convened at intervals not exceeding six months. Moreover, he also clarified that

the President was to act on the aid and advice of the Council of Ministers. Draft

Article 102 was accordingly approved.

G The Ordinance making power

25 Chapter IV of the Constitution contains a single constitutional provision:

Article 213.  The title to Chapter IV is descriptive of the nature of the power. The

power is described as the “Legislative power of the Governor”. The marginal

note  to  Article  213  describes  it  as  a  “power  of  Governor  to  promulgate

Ordinances during recess of legislature”.

26 The Constitution  has followed the same pattern  while enunciating  the

Ordinance making power of the President.  Chapter III contains a sole Article,

Article  123  which  specifies  the  “legislative  power”  of  the  President  to

promulgate Ordinances when Parliament is not in session.   

Article 213 provides as follows :

“213.  Power  of  Governor  to  promulgate Ordinances during recess of Legislature.—(1) 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:  

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Provided  that  the  Governor  shall  not,  without instructions  from  the  President,  promulgate  any such Ordinance if—  

(a)  a  Bill  containing  the  same  provisions would  under  this  Constitution  have  required  the previous  sanction  of  the  President  for  the introduction thereof into the Legislature; or  

(b) he would have deemed it necessary to reserve a Bill  containing the same provisions for the consideration of the President; or  

(c)  an  Act  of  the  Legislature  of  the  State containing the same provisions would  under  this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.  

(2)  An  Ordinance  promulgated  under  this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance—  

(a)  shall  be  laid  before  the  Legislative Assembly  of  the  State,  or  where  there  is  a Legislative  Council  in  the  State,  before  both  the Houses,  and  shall  cease  to  operate  at  the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a  resolution  disapproving  it  is  passed  by  the Legislative  Assembly  and  agreed  to  by  the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and  

(b)  may  be  withdrawn  at  any  time  by  the Governor.  

Explanation.—Where  the  Houses  of  the Legislature of a State having a Legislative Council 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.

(3) If and so far as an Ordinance under this article  makes  any  provision  which  would  not  be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:  

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Provided  that,  for  the  purposes  of  the provisions of this Constitution relating to the effect of  an  Act  of  the  Legislature  of  a  State  which  is repugnant to an Act of  Parliament or an existing law  with  respect  to  a  matter  enumerated  in  the Concurrent List, an Ordinance promulgated under this  article  in  pursuance  of  instructions  from the President  shall  be  deemed  to  be  an  Act  of  the Legislature of the State which has been reserved for the consideration of the President and assented to by him.”

27 The  authority  which  is  conferred  upon  the  Governor  to  promulgate

Ordinances is conditioned by two requirements.  The first is that an Ordinance

can be promulgated only when the state legislature is not in session.  When the

legislature  is  in  session,  a  law  can  only  be  enacted  by  it  and  not  by  the

Governor issuing an Ordinance.  The second requirement is that the Governor,

before  issuing  an  Ordinance  has  to  be  satisfied  of  the  existence  of

circumstances rendering it necessary to take immediate action.  The existence

of  circumstances  is  an  objective  fact.   The Governor  is  required  to  form a

satisfaction of the existence of circumstances which makes it necessary to take

immediate  action.   Necessity  is  distinguished from a mere desirability.  The

expression “necessity” coupled with “immediate action” conveys the sense that

it is imperative due to an emergent situation to promulgate an Ordinance during

the  period  when the  legislature  is  not  in  session.   The Governor  may then

promulgate  an  Ordinance  “as  the  circumstances  appear  to  him to  require”.

Both these requirements indicate a constitutional intent to confine the power of

the Governor to frame Ordinances within clearly mandated limits.  The first limit

describes  the  point  in  time  when  an  Ordinance  may  be  promulgated  :  no 72

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Ordinance  can  be  issued  when  the  legislature  is  in  session.  The  second

requirement conditions the Ordinance making power upon the prior satisfaction

of  the  Governor  of  the  existence  of  circumstances  necessitating  immediate

action.  The power conferred upon the Governor is not in the nature of and does

not make the Governor a parallel law making authority.  The legislature is the

constitutional repository of the power to enact law.  The legislative power of the

Governor  is  intended by the  Constitution  not  to  be  a substitute  for  the  law

making authority of duly elected legislatures. The same position would hold in

relation to the Ordinance making power of the President.  Article 213(1) also

specifies  the  circumstances  in  which  the  Governor  cannot  promulgate  an

Ordinance without the instructions of the President.  The three situations where

the instructions of the President are required are:

(i) Where a Bill containing the same provisions requires the previous sanction of the President, for its introduction into the legislature;

(ii) Where  a  Bill  containing  the  same provisions  would  be  deemed necessary by the Governor for being reserved for consideration of

the President; and (iii) Where a law enacted by the state legislature containing the same

provisions would require the assent of the President, failing which it

would be invalid.  

28 The first of the above conditions arises in a situation such as the proviso

to Article 304(b) of the Constitution. Under Article 304(b), the legislature of a

state is permitted to impose reasonable restrictions in the public interest on the

freedom  of  trade,  commerce  or  intercourse  with  or  within  that  state

(notwithstanding  anything  in  Articles  301  or  303).  The  proviso  requires  the

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previous sanction of the President before a Bill or amendment for the purposes

of clause (b) can be introduced in the state legislature.  An illustration of the

second requirement ((ii) above) is provided by Article 200 of the Constitution

under  which  the  Governor  is  required  to  reserve  for  consideration  of  the

President  any  Bill  which  in  his  opinion  would,  if  it  were  to  become  a  law,

derogate from the powers of  the High Court  so as to endanger the position

which it is designed to fill by the Constitution. Situations where the assent of the

President  is  required  ((iii)  above)  are illustrated  by Article  254 where  a law

made by the state legislature on a matter enumerated in the Concurrent List (of

the VIIth Schedule) is repugnant to a law made by Parliament. The state law will

prevail  only  if  and to  the  extent  to  which it  has received the assent  of  the

President.  These three situations make it abundantly clear that while exercising

the power to promulgate an Ordinance, the Governor is not liberated from the

limitations to which the law making power of the state legislature is subject.

29 An Ordinance which is promulgated by the Governor has (as clause 2 of

Article 213 provides) the same force and effect as an Act of the legislature of

the state assented to by the Governor.  However - and this is a matter of crucial

importance  –  clause  2  goes  on  to  stipulate  in  the  same  vein  significant

constitutional conditions. These conditions have to be fulfilled before the ‘force

and  effect’  fiction  comes  into  being.  These  conditions  are  prefaced  by  the

expression  “but  every  such  Ordinance”  which  means  that  the  constitutional

fiction is subject to what is stipulated in sub-clauses (a) and (b).  Sub-clause (a)

provides that the Ordinance “shall be laid before the legislative assembly of the 74

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state” or before both the Houses in the case of a bi-cameral legislature.  Is the

requirement  of  laying  an Ordinance  before  the  state  legislature  mandatory?

There can be no manner of doubt that it is.  The expression “shall be laid” is a

positive  mandate  which  brooks  no  exceptions.  That  the  word  ‘shall’  in

sub-clause (a) of clause 2 of Article 213 is mandatory, emerges from reading

the provision in its entirety.  As we have noted earlier, an Ordinance can be

promulgated only when the legislature is not in session. Upon the completion of

six weeks of the reassembling of the legislature, an Ordinance “shall cease to

operate”.  In other words, when the session of the legislature reconvenes, the

Ordinance  promulgated  has  a  shelf  life  which  expires  six  weeks  after  the

legislature has assembled.  Thereupon, it ceases to operate.  In the case of a

bi-cameral legislature where both the Houses are summoned to reassemble on

different dates the period of six weeks is reckoned with reference to the later of

those dates.  Article 174 stipulates a requirement that the state legislature has

to be convened no later than six months of the completion of its last sitting.

Consequently, the constitutional position is that the life of an Ordinance cannot

extend beyond a period six months and six weeks of the reassembling of the

legislature. The importance which the Constitution ascribes to the reassembling

of the legislature is because firstly, that date determines the commencement of

the period of six weeks upon which the Ordinance shall cease to operate. But

there  is  a  more  fundamental  significance  as  well,  which  bears  upon  the

mandate of an Ordinance being laid before the state legislature.  An Ordinance

will cease to operate within the period of six weeks of the reassembling of the

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legislature  if  a  resolution  disapproving  it  is  passed  by  the  legislature.   An

Ordinance may also be withdrawn by the Governor at any time.  The tenure of

an Ordinance is hence brought to an end :

(i) By the Ordinance ceasing to operate upon the expiry of a period of

six weeks of the reassembly of the legislature; or (ii) If  the  Ordinance  is  disapproved  by  a  resolution  of  the  state

legislature in which event it  ceases to operate on the resolution

disapproving it being passed; or (iii) In the event of the Ordinance being withdrawn by the Governor.

30 The laying of an Ordinance before the legislature is mandatory.  Textually,

the sense that this is a mandatory requirement is conveyed by the expression

“but every  such  Ordinance  shall  be  laid before  the  legislative  assembly”.

Though the Constitution contemplates that an Ordinance shall have the same

force and effect as a law enacted by the state legislature, this is subject to the

Ordinance being laid before the state legislature and coming to an end in the

manner stipulated in sub-clauses (a) and (b).   

31 Laying  of  an  Ordinance  before  the  state  legislature  subserves  the

purpose of legislative control over the Ordinance making power.  Legislation by

Ordinances is not an ordinary source of law making but is intended to meet

extra-ordinary  situations  of  an  emergent  nature,  during  the  recess  of  the

legislature. The Governor while promulgating an Ordinance does not constitute

an independent legislature, but acts on the aid and advice of the Council  of

Ministers under Article 163. The Council of Ministers is collectively responsible

to the elected legislative body to whom the government is accountable.  The 76

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Constitution  reposes the power  of  enacting  law in Parliament  and the state

legislatures under Articles 245 and 246, between whom fields of legislation are

distributed in the Seventh Schedule.  Constitutional control of Parliament and

the state legislatures over the Ordinance making power of the President (under

Article 123) and the Governors (under Article 213) is a necessary concomitant

to the supremacy of a democratically elected legislature.  The reassembling of

the  legislature  defines  the  outer  limit  for  the  validity  of  the  Ordinance

promulgated during its absence in session.  Within that period, a legislature has

authority to disapprove the Ordinance.  The requirement of laying an Ordinance

before the legislative body subserves the constitutional purpose of ensuring that

the  provisions  of  the  Ordinance  are  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 has to continue beyond the tenure

which  is  prescribed  by  Article  213(2)(a),  a  law  has  to  be  enacted  by  the

legislature incorporating its provisions.  Significantly, our Constitution does not

provide that an Ordinance shall assume the character of a law enacted by the

state legislature merely upon the passing of a resolution approving it.  In order

to assume the character of enacted law beyond the tenure prescribed by Article

213(2)(a), a law has to be enacted.  The placement of an Ordinance before the

legislature  is  a  constitutional  necessity;  the  underlying  object  and  rationale

being to enable the legislature to determine (i) the need for and expediency of

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an  ordinance;  (ii)  whether  a  law  should  be  enacted;  or  (iii)  whether  the

Ordinance should be disapproved.  

32 The failure to lay an Ordinance before the state legislature constitutes a

serious infraction of the constitutional obligation imposed by Article 213(2).  It is

upon an Ordinance being laid before the House that it is formally brought to the

notice of the legislature.  Failure to lay the Ordinance is a serious infraction

because  it  may  impact  upon  the  ability  of  the  legislature  to  deal  with  the

Ordinance.  We are not for a moment suggesting that the legislature cannot

deal  with  a  situation  where  the  government  of  the  day  has  breached  its

constitutional  obligation  to  lay  the  Ordinance  before  the  legislature.   The

legislature can undoubtedly  even in that  situation exercise its powers  under

Article 213(2)(a).  However, the requirement of laying an Ordinance before the

state  legislature  is  a  mandatory  obligation  and  is  not  merely  of  a  directory

nature.  We shall see how in the present case a pattern was followed by the

Governor of  Bihar of  promulgating and re-promulgating Ordinances,  none of

which was laid before the state legislature. Such a course of conduct would

amount  to  a  colourable  exercise  of  power  and  an  abuse  of  constitutional

authority.  Now it  is  in  this  background,  and having thus far  interpreted the

provisions of Article 213, that it becomes necessary to refer to the precedents

on the subject  and to the nuances in the interpretation of  the constitutional

provisions.    

H Precedent

H.1    Nature of the power 78

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33 The headings of both Chapters III and IV indicate that while promulgating

Ordinances, the President under Article 123 and the Governor under Article 213

exercise legislative powers. That an Ordinance “shall have the same force and

effect” as a law enacted by the state legislature indicates that in terms of its

operation  and consequence,  the  Ordinance making  power  is  placed on  the

same basis as law making power.  While enacting legislation the law making

body  –  whether  it  be  Parliament  or  the  state  legislatures  –  are  subject  to

constitutional limitations originating in (i) fundamental rights contained in Part

III; (ii) distribution of legislative powers between the Union and the States; and

(iii) express constitutional limitations.  Ordinances made by the President under

Article 123 and by the Governors under Article 213 are subject to the same

constitutional inhibitions.  An Ordinance is susceptible of a challenge based on

a violation of a guaranteed fundamental right and would be void to the extent of

an infraction of a fundamental right guaranteed by Part III.  Ordinances can be

made by the President in areas which lie within the legislative competence of

Parliament  and by the Governors,  in  areas where  the state legislatures are

competent  to enact  law.  Article 13 provides that a law shall  be void to the

extent of its inconsistency with Part III and for that purpose, the expression ‘law’

is  defined  in  clause  (3)(a)  to  include  an  Ordinance.   Article  367(2)  of  the

Constitution provides that :

“367 Interpretation

“(2) Any reference in  this  Constitution to  Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance

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made by the President or, to an Ordinance made by a Governor, as the case may be.”

Interpreting these provisions, a Constitution Bench of this Court in R.K. Garg v.

Union of India32 rejected the submission that while promulgating an Ordinance

under  Article  123  the  President  had  no  power  to  amend  or  alter  tax  laws.

Dealing with the submission that the legislative power must exclusively belong

to  elected  representatives  and  vesting  such  a  power  in  the  executive  is

undemocratic as it may enable the executive to abuse its power by securing the

passage  of  an  ordinary  Bill  without  risking  a  debate  in  the  legislature,  the

Constitution Bench emphasised the constitutional limitations on the exercise of

the ordinance making powers.  Adverting to the speech made by Dr Ambedkar

in  the  Constituent  Assembly  the  Court  noted  “that  the  legislative  power

conferred  on  the  President  under  this  Article  is  not  a  parallel  power  of

legislation33”. Among the provisions that the Court emphasised are limitations

on when the power can be exercised and the duration of an Ordinance.  The

Constitution Bench carefully emphasised the element of  legislative control  in

the following observations:

“...The conferment of such power may appear to be  undemocratic  but  it  is  not  so,  because  the executive is  clearly  answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature can not only pass a resolution disapproving the Ordinance but can  also  pass  a  vote  of  no  confidence  in  the executive.  There is in the theory of constitutional

32(1981) 4 SCC 675 33 (Id at pg.687)

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law  complete  control  of  the  legislature  over  the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature”.  (id at paragraph 4, page 688)

34 In the view of the Constitution Bench, “there is no qualitative difference

between  an  Ordinance  issued  by  the  President  and  an  Act  passed  by

Parliament”.  The same approach was adopted by another Constitution Bench

of this Court in AK Roy v. Union of India34 where this Court spoke about “the

exact  equation,  for  all  practical  purposes,  between  a  law  made  by  the

Parliament  and  an  ordinance  issued  by  the  President”35.   The  submission

before the Court in a challenge to the validity of the National Security Ordinance

was that an Ordinance is an exercise of executive and not legislative power.

While rejecting that submission, the Constitution Bench held that :

“14...the  Constitution  makes  no  distinction  in principle  between a  law made by the legislature and an ordinance issued by the President.  Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution  has placed upon that power”.  (id at page 291)

Both  the  decisions  of  the  Constitution  Bench  in  RK Garg and  in  AK Roy

repelled the submission that the Ordinance making power is not legislative in

nature and character.  Undoubtedly, the power to promulgate an Ordinance is a

legislative power which has been conferred upon the President or, as the case

may be, the Governors.  It is, however, necessary to emphasise that when the 34(1982) 1 SCC 271 35 (id at para 14 page 290)

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decision in RK Garg speaks of there being “no qualitative difference” between

an  Ordinance  issued  by  the  President  and  an  Act  of  Parliament  and  the

decision in   AK Roy speaks of the “exact equation for all practical purposes”

between the two, these observations are in the context of the principle that an

Ordinance promulgated under Article 123 or Article 213 of the Constitution is

subject to the same constitutional inhibitions which govern an enactment of the

legislature.   Both the  decisions of  the Constitution  Benches  have,  however,

placed significant emphasis on the safeguards introduced by the Constitution to

ensure against an abuse of power by the executive in exercising a legislative

power while framing an Ordinance.  The decision in RK Garg emphasised the

element of legislative control over an Ordinance made by the executive.  The

Constitution  Bench  in AK  Roy,  while  noting  that  the  Constituent  Assembly

conferred an Ordinance making power on the heads of  the executive in the

Union and the States as a “necessary evil”36, held thus :  

“16...That  power was to be used to meet  extraordinary situations and not perverted to serve political ends. The Constituent Assembly held forth, as it were, an assurance to  the  people  that  an extraordinary  power  shall  not  be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision.  That assurance  must  in  all  events  be  made  good  and  the balance  struck  by  the  founding  fathers  between  the powers of the government and the liberties of the people not disturbed or destroyed”.                  (id at pages 292-293)

35    While the Constitution stipulates that an Ordinance shall have the same

force  and  effect  as  a  law  enacted  by  the  legislature,  it  is  necessary  to

36[ Id at para 16 page 292] 82

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emphasise that the fiction which is created by Article 213(2) is subject to its

provisions which are : firstly, the duration of an Ordinance is limited until the

expiration  of  a  period  of  six  weeks  from the  reassembly  of  the  legislature;

secondly, the duration of an Ordinance can be curtailed to a period even less

than six weeks after the legislature has re-assembled, upon the passing of a

resolution  disapproving  the  Ordinance;  and  thirdly,  the  constitutional

requirement that an Ordinance shall be laid before the legislature. Legislative

control upon Ordinances made by the President or by the Governors is central

to  the  scheme  of  Articles  213  and  123  and  the  constitutional  fiction  which

ascribes to an Ordinance the same force and effect as a law enacted by the

legislature is subject to sub-clauses (a) and (b) of clause 2 of Article 213. The

expression “but” which precedes the formulation contained in sub-clauses (a)

and (b) indicates that the constitutional fiction is subject to the conditions that

are prescribed in the constitutional provision.   

I Presidential satisfaction

36 The constitutional power which has been conferred upon the President

under  Article  123 and upon  the  Governors  under  Article  213 to  promulgate

ordinances  is  conditional.  Apart  from  the  condition  that  the  power  can  be

exercised only when the legislature is not in session, the power is subject to the

satisfaction of the President (under Article 123) or the Governor (under Article

213)  “that  circumstances  exist  which  render  it  necessary  for  him  to  take

immediate action.”  

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37 In  R C Cooper  v. Union of India37,  a Bench of eleven Judges of this

Court  held  that  the  presidential  power  to  promulgate  an  ordinance  is

exercisable in extraordinary situations demanding immediate promulgation of

law. This Court held that the determination by the President was not declared to

be final. Justice J C Shah speaking for the court observed thus :

“23. Power to promulgate such Ordinance as the circumstances appear to the President to require is exercised--(a) when both Houses of Parliament are not  in  session;  (b)  the  provision  intended  to  be made is within the competence of the Parliament to enact;  and  (c)  the  President  is  satisfied  that circumstances exist which render it necessary for him  to  take  immediate  action.  Exercise  of  the power  is  strictly  conditioned.  The  clause relating  to  the  satisfaction  is  composite:  the satisfaction  relates  to  the  existence  of circumstances, as well  as to the necessity to take  immediate  action  on  account  of  those circumstances. Determination by the President of  the  existence  of  circumstances  and  the necessity  to  take  immediate  action  on  which the  satisfaction  depends,  is  not  declared final.”(emphasis supplied)

However, the issue had been rendered academic because the ordinance had

been replaced by a legislative enactment. The justiciability of the satisfaction

was not conclusively decided.  

38 The Constitution (Thirty Eighth Amendment) Act, 1975 was brought into

force  on  1  August  1975  during  the  period  of  the  internal  emergency.  The

amendment introduced, among other things, two crucial provisions into Articles

123 and 213 by which the satisfaction of the President or, as the case may be

37(1970) 1 SCC 248 84

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of the Governor, was declared to be final and conclusive and to be immune

from being questioned “in any court on any ground”. Clause 4 of Article 123

provided as follows :

“24….Notwithstanding anything in this Constitution, the  satisfaction  of  the  President  mentioned  in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground.”  (Id at p. 295)

By a similar amendment, clause 4 was introduced into Article 213. The effect of

the amendment was to grant an immunity from the satisfaction of the President

or the Governor being subjected to scrutiny by any court. This amendment was

expressly deleted by Section 16 of the Forty-fourth amendment.  

39 The effect of this deletion (of clause 4) was urged before a Constitution

Bench of this Court in A K Roy v. Union of India38, as a positive indicator that

the  satisfaction  of  the  authority  issuing  an  ordinance  on  the  existence  of

circumstances  necessitating  immediate  action  was  no  longer  final  and

conclusive and that it should be open to judicial scrutiny. In support, reliance

was placed on the following observations of Justice Shah and Justice Hegde in

Madhav Rao v. Union of India39. Justice Shah observed thus :

“25….Constitutional  mechanism  in  a  democratic polity  does  not  contemplate  existence  of  any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts.” (Id at p.296)

38(1982) 1 SCC 271 39(1971) 3 SCR 9

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Justice Hegde observed thus :

“25….There is nothing like a political power under our  Constitution  in  the  matter  of  relationship between the executive and the citizens.” (id at p. 296)

In A K Roy, Chandrachud, CJ speaking for the Constitution Bench held that the

issue as to whether the conditions for the exercise of the power under Article

213 had been fulfilled could not be regarded as a political question:  

“26.We see  the  force  of  the  contention  that  the question whether the pre-conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question. The doctrine of the political question was evolved in the United States of America on the basis of its Constitution  which  has adopted the system of  a rigid separation of  power, unlike ours.”   (Id at  p. 296)

The Constitution Bench held that the earlier case, State of Rajasthan v. Union

of India40 was decided at a time when the presidential satisfaction under clause

1 of Article 123 had been made final by the thirty-eighth amendment. This Court

held that it is arguable that after the forty-fourth amendment, judicial review of

the  President’s  satisfaction  is  not  totally  excluded.  The  observations  of

Chandrachud, CJ, speaking for the Constitution Bench are thus :

“27. The   Rajasthan  case  [State  of Rajasthan v. Union of  India,  (1977)  3 SCC 592 : (1978) 1 SCR 1] is often cited as an authority for the proposition that the courts ought not to enter

40(1978) 1 SCR 1 86

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the “political thicket”. It has to be borne in mind that at  the  time when that  case was decided,  Article 356 contained clause (5) which was inserted by the 38th Amendment, by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to  be  questioned  in  any  court  on  any  ground. Clause  (5)  has  been  deleted  by  the  44th Amendment  and,  therefore,  any  observations made  in  the Rajasthan  case [State  of Rajasthan v. Union of  India,  (1977)  3 SCC 592 : (1978) 1 SCR 1] on the basis of that clause cannot any longer hold good. It is arguable that the 44th Constitution Amendment Act leaves no doubt that  judicial  review is  not  totally  excluded in regard to the question relating to the President satisfaction.(Id at p. 297) (emphasis supplied)

However, in the ultimate analysis, the court declined to go into the question as

regards  the  justiciability  of  the  President’s  satisfaction  under  Article  123(1)

since, on the material placed before it, it was not possible for the court to arrive

at a conclusion one way or the other.  

The  impact  of  the  forty-fourth  amendment  was  noticed  by  Justice  Jeevan

Reddy in the nine judge bench decision In S R Bommai v. Union of India 41 :  

“379…We, however, agree that the deletion of this clause is certainly significant in the sense that the express bar created in the way of judicial review has  since  been  removed  consciously  and deliberately in exercise of the constituent power of Parliament. (See A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC (Cri) 152 : (1982) 2 SCR 272] ). The cloud cast by the clause on the power of judicial review has been lifted.” (Id at p. 270)

41(1994) 3 SCC 1 87

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As the above extract indicates, the observations in  A K Roy found a specific

reference, in Bommai. The court while construing the provisions of Article 356

noted  that  clause 5  which  expressly  barred  the jurisdiction  of  the  courts  to

examine the  validity  of  a  proclamation  had been deleted  by the forty-fourth

amendment to the Constitution. Elucidating the approach of the court, when a

proclamation under Article 356 is questioned, Justice Jeevan Reddy held that :

“373. Whenever a Proclamation under Article 356 is questioned, the court will no doubt start with the presumption that it was validly issued but it will not and  it  should  not  hesitate  to  interfere  if  the invalidity or unconstitutionality of the Proclamation is clearly made out. Refusal to interfere in such a case would amount to abdication of the duty cast upon the court — Supreme Court and High Courts — by the Constitution.” (Id at p.266-267)

The standard of judicial review was formulated in the following observations :

“374…..the  truth  or  correctness  of  the  material cannot be questioned by the court nor will it go into the  adequacy  of  the  material.  It  will  also  not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still  not interfere so long as there is some relevant material sustaining  the  action.  The  ground  of  mala  fides takes  in  inter  alia  situations  where  the Proclamation is found to be a clear case of abuse of  power,  or  what  is  sometimes  called  fraud  on power  — cases where this  power  is  invoked for achieving oblique ends.” (Id at p. 268)

40    Applying the principles which emerge from the judgment of Justice Jeevan

Reddy in Bommai, there is reason to hold that the satisfaction of the President

under Article 123(1) or of the Governor under Article 213(1) is not immune from

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judicial  review.  The  power  of  promulgating  ordinances  is  not  an  absolute

entrustment  but  conditional  upon  a  satisfaction  that  circumstances  exist

rendering it  necessary  to take immediate  action.  Undoubtedly, as this  Court

held in  Indra Sawhney  v.  Union of India42 the extent and scope of judicial

scrutiny depends upon the nature of the subject matter, the nature of the right

affected, the character of the legal and constitutional provisions involved and

such factors. Since the duty to arrive at the satisfaction rests in the President

and the Governors (though it is exercisable on the aid and advice of the Council

of  Ministers),  the  Court  must  act  with  circumspection  when  the  satisfaction

under Article 123 or Article 213 is 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 interference of the court can arise in a case involving a fraud

on power or an abuse of power. This essentially involves a situation where the

power  has  been  exercised  to  secure  an  oblique  purpose.  In  exercising  the

power of judicial review, the court must be mindful both of its inherent limitations

as well as of the entrustment of the power to the head of the executive who acts

on the aid and advice of the Council of Ministers owing collective responsibility

to the elected legislature. In other words, 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.                        42 (1992) Supp. (3)  SCC 217

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J Re-promulgation  

41 The judgment  in  D C Wadhwa  adopted  as  its  rationale,  the  title  and

theme of the work from which the case arose. In this section, we address the

basis for holding that an act of a constitutional functionary is construed to be a

fraud on the Constitution. Why does the repetition of an act which is permissible

initially, become a transgression of constitutional limits? The judgment in  D C

Wadhwa aside, we consider the issue of re-promulgation on first principle in the

first section. In the second section, we analyse the decision of the Constitution

Bench and explore its logic and limitations.  

J.1 The constitutional principles

42 The rationale for the conferment of a power to promulgate ordinances

upon the President and the Governors is that the law, particularly a compact of

governance, would not accept a state of constitutional vacuum. The legislature

is  not  always  in  session.  Convening  it  requires  time.  In  the  meantime,

unforeseen events may arise which need legislative redressal.  An ordinance

can  be  promulgated  only  when  the  legislature  is  not  in  session.  But  the

legislature has to be convened at an interval of no later than six months. The

life of an ordinance is restricted in time: six weeks after the reassembly of the

legislature, it  ceases to operate. Even within this period, a resolution can be

passed  by  the  legislature  disapproving  of  the  ordinance  promulgated  in  its

absence. In such an event, an ordinance made by the Governor on the aid and

advice of  the Cabinet ceases to operate.  The constitutional  conferment  of  a

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power  to frame ordinances is in deviation of  the normal  mode of  legislation

which takes place through the elected bodies comprising of Parliament and the

state legislatures. Such a deviation is permitted by the Constitution to enable

the President  and Governors to enact ordinances which have the force and

effect of law simply because of the existence of circumstances which can brook

no delay in the formulation of  legislation.  In a parliamentary democracy, the

government  is  responsible  collectively  to  the  elected  legislature.  The

subsistence  of  a  government  depends  on  the  continued  confidence  of  the

legislature.  The  ordinance  making  power  is  subject  to  the  control  of  the

legislature  over  the  executive.  The  accountability  of  the  executive  to  the

legislature is symbolised by the manner in which the Constitution has subjected

the  ordinance  making  power  to  legislative  authority.  This,  the  Constitution

achieves by the requirements of Article 213. The first requirement defines the

condition  subject  to  which  an  ordinance  can  be  made.  The  second  set  of

requirements makes it mandatory that an ordinance has to be placed before the

House  of  the  legislature.  The  third  requirement  specifies  the  tenure  of  an

ordinance  and  empowers  the  legislature  to  shorten  the  duration  on  the

formulation of a legislative disapproval.  Once the legislature has reconvened

after the promulgation of an ordinance, the Constitution presupposes that it is

for the legislative body in exercise of its power to enact law, to determine the

need for the provisions which the ordinance incorporates and the expediency of

enacting them into legislation. Once the legislature has convened in session,

the need for an ordinance is necessarily brought to an end since it is then for

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the  legislative  body  to  decide  in  its  collective  wisdom  as  to  whether  an

ordinance should have been made and if so, whether a law should be enacted.  

43 A reasonable period is envisaged by the Constitution for the continuation

of an ordinance, after the reassembling of the legislature in order to enable it to

discuss, debate and determine on the need to enact a law. Re-promulgation of

an ordinance, that is to say the promulgation of an ordinance again after the life

of an earlier ordinance has ended, is fundamentally at odds with the scheme of

Articles 123 and 213. Re-promulgation postulates that despite the intervening

session  of  the  legislature,  a  fresh  exercise  of  the  power  to  promulgate  an

ordinance is being resorted to despite the fact that the legislature which was in

seisin of a previously promulgated ordinance has not converted its provisions

into a regularly enacted law. What if there is an exceptional situation in which

the House of the legislature was unable to enact a legislation along the lines of

an ordinance because of the pressure of legislative work or due to reasons?

Would the satisfaction of the Governor on the need for immediate action be

arrived  at  for  an  act  of  re-promulgation,  after  a  legislative  session  has

intervened?  

44 Re-promulgation of ordinances is constitutionally impermissible since it

represents an effort to overreach the legislative body which is a primary source

of law making authority in a parliamentary democracy. Re-promulgation defeats

the constitutional scheme under which a limited power to frame ordinances has

been  conferred  upon  the  President  and  the  Governors.  The  danger  of

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re-promulgation lies in the threat which it poses to the sovereignty of Parliament

and the state legislatures which have been constituted as primary law givers

under  the  Constitution.  Open  legislative  debate  and  discussion  provides

sunshine which separates secrecy of ordinance making from transparent and

accountable governance through law making.

J.2 D C Wadhwa

45 The judgment  of  the Constitution  Bench in  D C Wadhwa  v. State  of

Bihar43 held  that  the  re-promulgation  of  ordinances  by  the  State  of  Bihar

constituted  a  fraud  on  the  Constitution.  Adverting  to  the  scheme  of  the

Constitution, the Constitution Bench observed thus :

“6….The primary law making authority  under the Constitution is the legislature and not the executive but it is possible that when the legislature is not in session circumstances may arise which render it is necessary, to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordinances. But every ordinance promulgated by the Governor must be placed before the legislature and it would cease  to  operate  at  the  expiration  of  six  weeks from the reassembly of the legislature or if before the  expiration  of  that  period  a  resolution disapproving  it  is  passed  by  the  Legislative Assembly and agreed to by the Legislative Council, if any. The object of this provision is that since the power  conferred  on  the  Governor  to  issue ordinances  is  an  emergent  power  exercisable when the legislature is not in session, an ordinance promulgated  by  the  Governor  to  deal  with  a

43(1987) 1 SCC  378 93

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situation  which  requires  immediate  action  and which  cannot  wait  until  the  legislature reassembles, must necessarily have a limited life. …”

“The  power  to  promulgate  an  ordinance  is essentially  a  power  to  be  used  to  meet  an extraordinary situation and it cannot be allowed to be “perverted to serve political ends”. It is contrary to all democratic norms that the executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the  Governor  and  an  ordinance  issued  by  the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it  is  provided  that  the  ordinance  shall  cease  to operate  on  the  expiration  of  six  weeks  from the date  of  assembling  of  the  legislature.  The Constitution-makers expected that if the provisions of the ordinance are to be continued in force, this time should be sufficient for the legislature to pass the  necessary  Act.  But  if  within  this  time  the legislature  does  not  pass  such  an  Act,  the ordinance  must  come  to  an  end.  The  executive cannot continue the provisions of the ordinance in force  without  going  to  the  legislature.  The law-making  function  is  entrusted  by  the Constitution  to  the  legislature  consisting  of  the representatives of the people and if the executive were  permitted  to  continue  the  provisions  of  an ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the  legislature,  it  would  be  nothing  short  of Susurpation  by  the  executive  of  the  law-making function of the legislature. The executive cannot by taking resort to an emergency power exercisable by it  only  when the legislature is not  in  session, take  over  the  law-making  function  of  the legislature.  That  would  be  clearly  subverting  the democratic process which lies at  the core of our constitutional  scheme, for  then the people would be  governed  not  by  the  laws  made  by  the legislature as provided in the Constitution but by laws made by the executive.” (Id at p. 392)

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The re-promulgation  of  ordinances  was held  to  be a colourable  exercise of

power.  The Constitution Bench held that the executive in the State of Bihar had

almost taken over the role of the legislature in making laws, not for a limited

period but for years together in disregard of constitutional limitations. This Court

warned that there must not be an ordinance raj in the country :

“6……When  the  constitutional  provision  stipulates  that  an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks  from  the  reassembly  of  the  legislature  and  the government if  it wishes the provisions of the ordinance to be continued in force beyond the period of six weeks has to go before  the  legislature  which  is  the  constitutional  authority entrusted  with  the  law-making  function,  it  would  most certainly  be  a  colourable  exercise  of  power  for  the government to ignore the legislature and to repromulgate the ordinance and thus to continue to regulate the life and liberty of  the  citizens  through ordinance  made by the  executive.” (Id at p. 394)

The  limitation  of  the  decision  in D  C  Wadhwa is  that  having  spelt  out

constitutional  doctrine,  the  Constitution  Bench ended only  with  a  ‘hope and

trust’ that law making through re-promulgated ordinances would not become the

norm.  That  trust  has  been  belied  by  the  succession  of  re-promulgated

ordinances in this case. The ultimate direction was to set aside one ordinance

on  intermediate  education,  which  still  held  the  field.  D C Wadhwa did  not

address itself to the legal status of action taken under an ordinance which has

lapsed on the expiry of its tenure or on being disapproved. Does action initiated

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under  an  ordinance  survive  the  end  of  an  ordinance  which  has  not  been

adopted into an act of the legislature? That is the issue to which we turn now.  

K Life beyond death : the conundrum of enduring effects

46 Article  213(2)(a)  postulates  that  an ordinance would cease to operate

upon the expiry of a period of six weeks of the reassembly of the legislature.

The Oxford English dictionary defines the expression “cease” as44 : “to stop,

give over, discontinue, desist; to come to the end.”P Ramanatha Aiyar’s, The

Major Law Lexicon45 defines the expression “cease” to mean “discontinue or

put an end to”. Justice C K Thakker’s Encyclopaedic Law Lexicon46 defines

the word “cease” as meaning:  “to put an end to;  to stop,  to terminate or to

discontinue”. The expression has been defined in similar terms in Black’s Law

Dictionary47.  

47 In a judgment of a Division Bench of the Andhra Pradesh High Court in

Mahanat Narayan Dessjivaru  v. State of Andhra48, it was held that once a

scheme and a sanad were no longer operative, the rights, if any, accruing there

from  were  extinguished.  There  was  no  scope  for  importing  any  notion  of

suspension into that expression. A discontinuation took effect “once for all49”.  

44 The Oxford English Dictionary (II Edition) : Clarendon Press, pg. 1014  45The Major Law Lexicon (IV Edn. Pg. 1053) 46Ashoka Law House, New Delhi (india) pg. 879 47XthEdn. Pg. 268 48AIR (1959) AP 471 49Id at para 28, pg. 474

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48 The expression “cease to operate” in Article 213(2)(a) is attracted in two

situations.  The  first  is  where  a  period  of  six  weeks  has  expired  since  the

reassembling of the legislature. The second situation is where a resolution has

been passed by the legislature disapproving of an ordinance. Apart from these

two  situations  that  are  contemplated  by  sub-clause  (a),  sub-clause  (b)

contemplates that an ordinance may be withdrawn at any time by the Governor.

Upon its withdrawal the ordinance would cease to operate as well.  

49 The expression “disapproval”  is defined in  P Ramanatha Aiyar’s Law

Lexicon (supra) as being sometimes used in the sense of formally refusing a

sanction or annulling in consequence of the feeling of disapprobation. Black’s

Law  Dictionary50 defines  disapproval  as  “a  negative  decision  or  attitude

towards someone or something.”

50 The  issue  before  the  court  is  of  the  consequence  of  an  ordinance

terminating on the expiry of a period of six weeks or, within that period, on a

disapproval by the legislature. The constitutional provision states that in both

situations the ordinance ceases to operate. Where an ordinance has ceased to

operate, would it result ipso jure in a revival of the state of affairs which existed

before the ordinance was promulgated? Would the legal effects created by the

ordinance stand obliterated as a matter of law upon the lapsing of an ordinance

or passing of a resolution of disapproval? There are two constructions which

need to be analysed. Each of them lies at two opposing ends. At one end of the

50

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spectrum is the view that once the legislature has expressed its disapproval by

a  resolution,  the  state  of  affairs  which  the  ordinance  brought  about  stands

dissolved and that which existed on the eve of the ordinance stands revived. In

this view, disapproval  amounts to an obliteration of the effect of all  that  had

transpired in the meantime. At the other end of the spectrum is the view that an

ordinance upon being promulgated has the force and effect of a law enacted by

the legislature. Hence, the lapsing of its term (on the expiry of six weeks or the

passing  of  a  resolution  of  disapproval)means  that  the  ordinance  ceases  to

operate from that date. Until the ordinance ceases to operate, it continues to

have the force of law with the result that the enduring effects of an ordinance or

consequences which have a permanent character may subsist beyond the life

of ‘the’ ordinance. Alternatively, where a situation has been altered irreversibly

in pursuance of the legal authority created by the ordinance, the clock cannot

be set back to revive the state of affairs as it existed prior to the promulgation of

the ordinance.  

51 Before the position is examined as a matter of first principle, it would be

appropriate to examine the precedent emanating from this Court. In  State of

Punjab  v. Mohar Singh,51 an ordinance was promulgated by the Governor of

East Punjab under Section 88 of the Government of India Act, 1935, for the

registration  of  land  claims  of  refugees  from  East  Punjab.  The  respondent

purporting  to  be  a  refugee  from  West  Pakistan  filed  a  claim  under  the

ordinance. The ordinance was repealed and an Act was passed by the East

51AIR (1955) SC 84 98

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Punjab legislature re-enacting all the provisions of the repealed ordinance. The

respondent  was prosecuted under the Act on the ground that  his claim had

been found to be false and no land in fact belonged to him in West Pakistan.

The respondent was convicted of an offence under the Act and sentenced to

imprisonment.  The  District  Magistrate  considering  the  sentence  to  be

inadequate,  referred  the  case  to  the  High  Court.  The  respondent  raised  a

preliminary  objection  on  the  ground  that  the  offence  had  been  committed

against the ordinance before the Act had come in to being and the prosecution

was commenced long after the ordinance had come to an end. This contention

was  accepted  by  a  Division  Bench  of  the  High  Court  which  set  aside  the

conviction and sentence. The High Court  held that Section 6 of the General

Clauses Act is attracted only when an Act is repealed simpliciter but not when a

repeal is followed by a re-enactment. The repealing act, it was held, did not

provide that an offence which was committed when the ordinance was in force

could be punished after its repeal. In appeal, this Court noted in a decision of

three  Judges  that  the  prosecution  was  initiated  against  the  respondent  not

under  the  ordinance  but  under  the  provisions  of  the  Act.  The  offence was

committed when the Act was not in force. The court held that no person could

be prosecuted or punished under a law which came into existence subsequent

to the commission of an offence. But the issue which still survived was whether

the respondent could be prosecuted and punished under the ordinance after it

was repealed. This Court observed that :

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“8…..Whenever there is a repeal of an enactment, the consequences laid down in  Section 6 of  the General  Clauses  Act  will  follow  unless,  as  the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room  for  expression  of  a  contrary  opinion.  But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether  the  new  Act  expressly  keeps  alive  old rights  and  liabilities  but  whether  it  manifests  an intention  to  destroy  them.  We  cannot  therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal  of  an  enactment  followed  by  a  fresh legislation.”

The offence committed by the respondent consisted in filing false claim under

the provisions of the ordinance. The claim was filed under the ordinance and

any false information in regard to such a claim was a punishable offence under

the ordinance. Under the proviso to Section 4 of the Act, a claim filed under the

ordinance would be treated as one filed under the Act, with all consequences

attached  to  it.  A refugee  who  had  previously  submitted  a  claim  under  the

ordinance was not required to submit another claim in respect of the same land.

Such a claim would be registered as a claim under the Act. Hence, it was held

that the incidents attached to the filing of a claim, as laid down in the Act must

necessarily follow. If the information given by the claimant was false, he could

be punished under the provisions of the Act. This Court held  :

“9…..If  we  are  to  hold  that  the  penal  provisions contained in the Act cannot be attracted in case of a claim filed under the Ordinance, the results will be  anomalous  and  even  if  on  the  strength  of  a

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false claim a refugee has succeeded in getting an allotment in his favour, such allotment could not be cancelled under Section 8 of the Act. We think that the  provisions  of  Sections  47  and  8  make  it apparent  that  it  was  not  the  intention  of  the Legislature that the rights and liabilities in respect of  claims  filed  under  the  Ordinance  shall  be extinguished on the passing of the Act, and this is sufficient for holding that the present case would attract  the operation of  Section 6 of  the General Clauses Act.”

The conviction and sentence were restored and the judgment of the High Court

was set aside (enhancement was also refused). The decision in Mohar Singh

involved a case where an ordinance (under which a false claim had been filed)

was repealed by an Act of the legislature. The Act was interpreted to mean that

the claim which was filed under the ordinance would be reckoned as a claim

under the Act. Once this was so, rights and liabilities in respect of claims filed

under the ordinance were held not to be extinguished despite repeal.

52 The judgment in  Mohar Singh drew sustenance from the provisions of

Section 6 of the General Clauses Act. This Court held that when an enactment

is repealed, the consequences envisaged in Section 6 of the General Clauses

Act  will  follow  unless  a  contrary  intention  appears.  This  principle  is  not

inapplicable merely because a repeal  is followed by a fresh enactment.  The

court found as a matter of statutory construction that the rights and liabilities

under an ordinance which had been repealed did not stand extinguished on the

enactment of a fresh legislation.  

53 Section 6 of the General Clauses Act provides as follows :

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“Section 6.  Where this Act or any Central  Act or regulation made after  the commencement of  this Act,  repeals  any  enactment  hitherto  made  or hereafter  to  be  made,  then,  unless  a  different intention appears, the repeal shall not—

* * *

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d)  affect  any  penalty,  forfeiture  or  punishment incurred  in  respect  of  any  offence  committed against any enactment so repealed; or

(e)  affect  any  investigation,  legal  proceeding  or remedy  in  respect  of  any  such  right,  privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid”.

54 Section 6 in its terms applies only to a repeal. An ordinance ceases to

have effect six weeks from the date on which the legislature reassembles (or

upon the passing of a legislative resolution disapproving it). An ordinance which

lapses upon the expiry of its tenure of six weeks from the reassembly of the

legislature  is  not  repealed  as  such.  Repeal  of  a  legislation  results  from  a

positive or affirmative act of the legislative body based on its determination that

the  law  is  no  longer  required.  Repeal  takes  place  through  legislation.  An

ordinance lapses (‘ceases to operate’) when it has failed to obtain legislative

approval by being converted into a duly enacted legislation. Section 6 of the

General Clauses Act protects rights, privileges and obligations and continues

liabilities in cases of repeal of an enactment. The issue as to whether rights,

privileges,  obligations  and  liabilities  which  have  arisen  under  an  ordinance

which has ceased to operate would endure is not answered by Section 6 of the

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General  Clauses  Act.  What  then  is  the  touch-stone  on  which  this  question

should be resolved?  

55 In  State  of  Orissa  v.  Bhupendra  Kumar  Bose52,  elections  to  a

municipality were set aside by the High Court on a defect in the publication of

the electoral roll. The Governor of Orissa promulgated an ordinance by which

the elections were validated together with the electoral rolls. A Bill was moved in

the  state  legislature  for  enacting  a  law  in  terms  of  the  provisions  of  the

ordinance but was defeated by a majority of votes. The State of Orissa filed an

appeal before this Court against the decision of the High Court striking down

material provisions of the ordinance. Before this Court, it was urged on behalf of

the respondent  that  the ordinance was in the nature of  a temporary  statute

which was bound to lapse after the expiration of the prescribed period. It was

urged that after the ordinance had lapsed, the invalidity of the elections which it

had  cured  stood  revived.  It  was  in  the  above  background  that  this  Court

addressed itself to the question as to whether a lapse of the ordinance affected

the  validation  of  the  elections  under  it.  Justice  Gajendragadkar,  writing  the

opinion  of  a  Constitution  Bench  held  that  the  general  rule  in  regard  to  a

temporary statute is that in the absence of a special provision to the contrary,

proceedings taken against  a person under it  will  terminate when the statute

expires. That is why the legislature adopts a savings provision similar to Section

6 of the General Clauses Act. But in the view of the court, it would not to be

open to the ordinance making authority to adopt such a course because of the

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limitation  imposed  by  Article  213(2)(a).  The  Constitution  Bench  relied  upon

three English judgments: Wicks v. Director of Public Prosecutions53 ; Warren

v. Windle54; and Steavenson v. Oliver55.

Having adverted to these English decisions, the Constitution Bench held thus :

“21…..In  our  opinion,  what  the  effect  of  the expiration  of  a  temporary  Act  would  be  must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not.”

The ‘enduring rights’  theory  which had been applied in English decisions to

temporary  statutes  -  was  thus  brought  in  while  construing  the  effect  of  an

ordinance which has ceased to operate. In the view of the Constitution Bench :

“21….Therefore,  in  considering  the  effect  of  the expiration  of  a  temporary  statute,  it  would  be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person that right cannot be taken away because the statute by which it  was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter.”

The court held that the validation of the municipal elections was not intended to

be  temporary  in  character  which  would  last  only  during  the  lifetime  of  the

ordinance. The rights created by it were held to endure and last even after the

53(1947)  A.C. 362 54(1803) 3 East 205, 211-212 : 102 E.R. (K.B.) 578 55151 E.R. 1024, 1026-1027

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expiry of the ordinance. Consequently, the lapsing of the ordinance would not

result  in the revival  of  the invalidity of  the election which the ordinance had

validated.  

56 This  reasoning  was  followed  by  a  Constitution  Bench  in  T  Venkata

Reddy  v. State  of  Andhra  Pradesh56.  In  that  case,  an  ordinance  was

promulgated by the Governor of Andhra Pradesh to abolish posts of a part-time

village officer. The ordinance was not replaced by an Act but was succeeded by

four other ordinances. The submission before the High Court was that upon the

lapsing of the ordinances (the legislature not having passed an Act in its place)

the posts which were abolished would stand revived. The Constitution Bench

held that :

“14……An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that  the  Ordinance-making  power  is  legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution.” (Id at p. 211)

This Court held that an ordinance is not rendered void at its commencement

merely because it has been disapproved by the legislature :

“19…..It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the  commencement  on  the  State  Legislature disapproving  it.  It  says  that  it shall  cease  to operate. It only means that it should be treated as being  effective  till  it  ceases  to  operate  on  the

56(1985) 3 SCC 198 105

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happening of the events mentioned in clause (2) of Article 213.” (Id at p. 214)

The  abolition  of  the  posts  of  part-time  village  officer  was  held  to  be  an

established fact. If the legislature intended to bring back the post as it existed

before the promulgation of the ordinance, the court held that a law would have

to be enacted by the state legislature :

“20. We do not,  however, mean to say here that Parliament or the State Legislature is powerless to bring into  existence the same state  of  affairs  as they  existed  before  an  Ordinance  was  passed even though they may be completed and closed matters  under  the  Ordinance.  That  can  be achieved  by  passing  an  express  law  operating retrospectively to the said effect, of course, subject to  the  other  constitutional  limitations.  A  mere disapproval by Parliament or the State Legislature of an Ordinance cannot, however, revive closed or completed transactions.” (Id at p. 216)

57 The basic premise of the decision in Bhupendra Kumar Bose is that the

effects of an ordinance can be assessed on the basis of the same yardstick that

applies to a temporary enactment. There is a fundamental fallacy in equating an

ordinance  with  a  temporary  enactment.  A temporary  Act  is  a  law  which  is

enacted by the legislature – Parliament or the state legislature – in exercise of

its plenary powers. While enacting a law, the legislature is entitled to define the

period  during  which the law is  intended to  operate.  The legislature  decides

whether the law will be for a limited duration or is to be permanent. Hence, it

lies perfectly within the realm and competence of the legislature which enacts a

temporary  law to  provide  that  the  rights  or  the  liabilities  which  are  created 106

Page 107

during  the tenure  of  the law will  subsist  beyond the expiry  of  its  term.  The

legislature which has the competence to enact a law unrestricted by tenure is

equally competent  to enact a temporary legislation in which it  can convey a

legislative intent that the rights or obligations which will be created will continue

to subsist even upon its expiry. An ordinance is not in the nature of a temporary

enactment. An ordinance is conditioned by specific requirements. The authority

to promulgate an ordinance arises only when the legislature is not in session

and  when  circumstances  requiring  emergent  action  exist.  The  Constitution

prescribes that an ordinance shall remain valid for a period of not more than six

weeks  after  the  legislature  reassembles  and  even  within  that  period,  it  will

cease to operate if it is disapproved. Hence, the considerations which govern

law making by a competent legislature which has plenary powers to enact a law

cannot be equated with a temporary enactment. The basic error, if we may say

so with respect, in the judgment in Bhupendra Kumar Bose lies in its placing

an ordinance on the same pedestal as a temporary enactment. The judgement

in T Venkata Reddy follows the rationale of Bhupendra Kumar Bose. Having

done that, the Constitution Bench proceeded to hold that if Parliament or the

state legislatures intend to revive the state of affairs which existed before the

ordinance  was  promulgated,  it  would  have  to  bring  a  law  which  has

retrospective effect. A disapproval by the legislature, it was held cannot revive

completed transactions. The effect of the judgment in  T Venkata Reddy  is to

place ordinances in a privileged position and to disregard the supremacy of

Parliament. By way of an illustration, take a situation where an ordinance has

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overridden rights created by a duly enacted legislation. If the ordinance lapses,

the decision in  T Venkata Reddy  would posit  that  the consequences which

have  ensued  under  the  ordinance  can  only  be  reversed  by  a  retrospective

legislation  enacted  by  Parliament  which  restores  status  quo  ante.  In  a

hierarchical  sense,  this  virtually  subordinates  the  position  of  legislation  in

relation  to  ordinance  making  powers.  The  basis  and  foundation  of  the  two

Constitution  Bench  decisions  cannot  be  accepted  as  reflecting  the  true

constitutional position.  

58 What then is the effect  upon rights,  privileges,  obligations or  liabilities

which arise under an ordinance which ceases to operate? There are two critical

expressions in Article 213(2) which bear a close analysis. The first is that an

ordinance “shall have the same force and effect” as an act of the legislature

while the second is that it “shall cease to operate” on the period of six weeks of

the reassembling of  the legislature or  upon a resolution of  disapproval.  The

expression “shall have the same force and effect” is prefaced by the words “an

ordinance promulgated under this article”. In referring to an ordinance which is

promulgated under Article 213, the Constitution evidently conveys the meaning

that in order to have the same force and effect as a legislative enactment, the

ordinance  must  satisfy  the  requirements  of  Article  213.  Moreover  the

expression  “shall  have  the  same  force  and  effect”  is  succeeded  by  the

expression “but every such ordinance..” shall be subject to what is stated in

sub-clauses(a) and (b). The pre-conditions for a valid exercise of the power to

promulgate as well as the  conditions subsequent to promulgation are both 108

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part of a composite scheme. Both sets of conditions have to be fulfilled for an

ordinance to have the protection of the ‘same force and effect’ clause. Once the

deeming  fiction  operates,  its  consequence  is  that  during  its  tenure,  an

ordinance shall operate in the same manner as an act of the legislature. What

is  the  consequence  of  an  ordinance  ceasing  to  operate  by  virtue  of  the

provisions of Article 213(2)(a)? There are two competing constructions which

fall for consideration. The expression “shall cease to operate” can on the one

hand to be construed to mean that with effect from the date on which six weeks

have expired after the reassembling of the legislature or upon the disapproval

of the ordinance, it would cease to operate from that date. ‘Cease’ to operate in

this  sense would mean that  with effect  from that  date,  the ordinance would

prospectively have no operation. The ordinance is not void at its inception. The

second  meaning  which  can  be  considered  for  interpretation  is  that  the

expression “shall cease to operate” will mean that all legal consequences that

arose during the tenure of the ordinance would stand obliterated. According to

the second construction, which is wider than the first, the consequence of an

ordinance  having  ceased to  operate  would  relate  back  to  the validity  of  an

ordinance.  

59 Now, one of the considerations that must be borne in mind is that Article

213  has  not  made  a  specific  provision  for  the  saving  of  rights,  privileges,

obligations or liabilities that have arisen under an ordinance which has since

ceased to operate either upon the expiry of its term or upon a resolution of

disapproval. Significantly, there are other provisions of the Constitution where, 109

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when  it  so  intended,  the  Constitution  has  made  express  provisions  for  the

saving of rights or liabilities which arise under a law. Under Article 352(4) every

resolution for the proclamation of  an emergency has to be laid before each

House of Parliament and will “cease to operate” on the expiration of one month

unless it has been approved during that period by resolutions of both Houses of

Parliament. Under clause 5 of Article 352, a proclamation thus approved shall,

unless it  is  revoked,  “cease to operate”  on the expiration of  a period of  six

months.  When  a  proclamation  of  emergency  is  in  operation  Parliament  is

conferred with the power to make laws even with respect to matters in the state

list. Article 358(1) provides that when a proclamation of emergency is in force,

nothing in Article 19 shall restrict the power of the state as defined in Part III to

make  any  law  which  the  state  but  for  the  provisions  of  Part  III  would  be

competent  to  make.  However  any  law  so  made  shall  to  the  extent  of  its

incompetency  cease to  have  effect  as  soon  as the  proclamation  ceases  to

operate “except as respects things done or omitted to be done before the law

so  ceases  to  have  effect”.  Similarly  Article  359(1)  provides  that  during  the

operation of a proclamation of emergency the President may declare that the

right to move a court for the enforcement of rights conferred by Part III (except

Articles 20 and 21) shall remain suspended. However, Article 359(1A) provides

that any law made shall to the extent of the incompetency with Part III cease to

have  effect  as  soon  as  the  order  aforesaid  ceases  to  operate  “except  as

respects things done or omitted to be done before the law so ceases to have

effect”.  

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60 The  nature  of  the  power  of  the  President  and  the  structure  of  the

emergency  provisions  is  undoubtedly  different  from  the  ordinance  making

powers under Articles 123 and 213. However, it is significant to note that while

making a provision that a parliamentary law would cease to operate after  a

proclamation of emergency is revoked, the Constitution Bench has provided for

an express saving clause in Articles 358(1) and 359(1)(A).  Such a provision

was  necessary  because  the  effect  of  the  proclamation  of  emergency  is  to

enable Parliament to enact legislation without the restraint of Article 19. But for

it,  a  law which offends Article 19 would be void under  Article 13.  Once the

proclamation ceases to operate, the law made ceases to have effect. Hence, a

specific savings provision has been made as respects things done or omitted to

be done when the law was in operation.

61 Similarly, a presidential proclamation under Article 356(1)(b) may declare

that the powers of the legislature of the state shall be exercisable by or under

the  authority  of  Parliament.  Every  such  proclamation  is  required  to  be  laid

before each House of Parliament and will cease to operate on the expiration of

two months,  unless it  has been approved by resolutions of  both Houses of

Parliament. Under Article 357, any law made by Parliament in exercise of the

power of the state legislature, which it would not have been competent to make

but for a proclamation under Article 356 shall continue in force even after the

cessation of the proclamation until it is altered or repealed or amended by a

competent legislature. This is a situation where the Constitution has provided

for the continuation of a law even after the cessation of a proclamation.  111

Page 112

62 Article 249 enables Parliament to legislate on matters enumerated in the

state list if the Council of States has declared by a resolution supported by not

less than two thirds of its members present and voting that it is necessary or

expedient in the national interest that Parliament should make laws on a subject

in the state list. Similarly, under Article 250, Parliament is empowered, while a

proclamation of emergency is in operation, to make laws with respect to any

matter in the state list. Article 249(3) and Article 250(2) however stipulate that

the law enacted by Parliament shall cease to have effect on the expiration of six

months  of  the  resolution.  However,  both  Article  249(3)  and  Article  250(2)

contain a savings clause as respects things done or omitted to be done before

the  expiration  of  the  period.  Such  a  saving  has  been  rendered  necessary

because  Parliament  has,  in  pursuance of  a  resolution  under  Article  249,  or

under  Article  250 during  a proclamation  of  emergency, enacted  a law on a

matter in the State List (which Parliament is not otherwise competent to enact).

Once the law ceases to have effect,  the framers considered it  necessary to

introduce  a  saving  as  respects  things  done  under  it.  This  was  necessary

because a law lacking in legislative competence would be void, but for Articles

249 and 250.

63 In S R Bommai v. Union of India57, Justice B P Jeevan Reddy delivering

a judgment on behalf of himself  and Justice S C Agrawal observed that the

requirement of laying a proclamation under Article 356 before both Houses of

Parliament and the provision for its cessation unless approved by a resolution

57(1994) 3 SCC 1 112

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passed by both Houses before the expiry of two months “is conceived both as a

check upon the power and as a vindication of the principle of Parliamentary

supremacy over the executive”. In the earlier decision in State of Rajasthan v.

Union of India58, a view was expressed that even after Parliament disapproves

or declines to approve of a proclamation within two months, the proclamation

would be valid for  two months.  Moreover, it  was held  that  even if  both  the

Houses do not  approve or  disapprove of  the proclamation,  the Government

which has been dismissed or the assembly which may have been dissolved do

not revive. This view was disapproved in the judgment of Justice Jeeven Reddy

in S R Bommai with the following observations :

“290…..With utmost respect to the learned Judges, we find  ourselves unable  to  agree with  the said view  insofar  as  it  says  that  even  where  both Houses  of  Parliament  disapprove  or  do  not approve the Proclamation, the Government which has been dismissed does not revive. (The State of Rajasthan [(1977)  3  SCC  592  :  AIR  1977  SC 1361  :  (1978)  1  SCR  1]  also  holds  that  such disapproval  or  non-approval  does  not  revive  the Legislative  Assembly  which  may  have  been dissolved but  we need not  deal  with  this  aspect since  according  to  the  view  expressed  by  us hereinabove,  no  such  dissolution  is  permissible before the approval of both the Houses).  Clause (3),  it  may  be  emphasised,  uses  the  words “approved  by  resolutions  of  both  Houses  of Parliament”.  The  word  “approval”  means affirmation  of  the  action  by  a  higher  or  superior authority.  In  other  words,  the  action  of  the President has to be approved by Parliament. The expression  “approval”  has  an  intrinsic  meaning which  cannot  be  ignored.  Disapproval  or non-approval means that the Houses of Parliament are  saying  that  the  President's  action  was  not justified  or  warranted  and  that  it  shall  no  longer

58(1977) 3 SCC 592 113

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continue. In such a case, the Proclamation lapses, i.e.,  ceases to be in operation at  the end of two months — the necessary consequence of which is the  status  quo  ante  revives.  To  say  that notwithstanding  the  disapproval  or  non-approval, the status quo ante does not revive is to rob the concept  of  approval  of  its  content  and meaning. Such a view renders the check provided by clause (3) ineffective and of no significance whatsoever. The Executive would be telling Parliament : “I have dismissed  the  Government.  Now,  whether  you approve  or  disapprove  is  of  no  consequence because  the  Government  in  no  event  can  be revived. The deed is done. You better approve it because you have practically  no choice.”  We do not think that such a course is consistent with the principle  of  parliamentary  supremacy  and parliamentary control over the Executive, the basic premise  of  parliamentary  supremacy.  It  would indeed  mean  supremacy  of  the  Executive  over Parliament. The dismissal of a Government under sub-clause  (a)  of  clause  (1)  cannot  also  be equated  to  the  physical  death  of  a  living  being. There is no irrevocability about it. It is capable of being revived and it revives. Legislative Assembly which may have been kept in suspended animation also springs back to life. So far as the validity of the  acts  done,  orders  passed  and  laws,  if  any, made  during  the  period  of  operation  of  the Proclamation  is  concerned,  they  would  remain unaffected  inasmuch  as  the  disapproval  or non-approval  does  not  render  the  Proclamation invalid with retrospective effect.”(Id at p.226)

Justice P B Sawant speaking on behalf of himself and Justice Kuldip Singh held

that :

“There is no reason why the Council of Ministers and  the  Legislative  Assembly  should  not  stand restored as a consequence of the invalidation of the Proclamation, the same being the normal legal effect of the invalid action.” (Id at p. 122)

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In  this  view,  if  a  proclamation  is  held  to  be  invalid  then  even  though  it  is

approved by both Houses of  Parliament,  the court  would have the power to

restore the  status quo ante prior to the issuance of the proclamation and to

restore the legislative assembly and the ministry. However, while doing so, it

would be open to the court to suitably mould the relief and declare as valid,

actions of the President till that date. Moreover, it would be open to Parliament

and the state legislature to validate the actions of the President. This statement

of  law  was  concurred  in  by  Justice  S  R  Pandian.  Justice  K  Ramaswamy,

however, agreed with the view in State of Rajasthan, holding that there was no

express provision in the Constitution to revive an assembly which has been

dissolved or to re-induct a Government which has been removed. Justice A M

Ahmadi was generally in agreement with the view of Justice K Ramaswamy

though he has not specifically expressed an opinion on this aspect. Justices J S

Verma and Yogeshwar Dayal rested their decision upon the non-justiciability of

the proclamation and relied on the decision in State of Rajasthan.  

64 The view which was adopted by this Court in  State of Rajasthan was

reflected in the majority decision of Justices Y V Chandrachud, Untwalia and

Fazl Ali. That view posited that a proclamation has a life of two months and the

only effect  of its non-placement  before Parliament is that it  ceases after the

expiry of two months. Hence, it was held that disapproval of the proclamation

by Parliament would not result in a revival of the status quo ante. This view in

State of Rajasthan was overruled in  S R Bommai. However, at this stage, it

may also be of significant to note that in the course of the judgment Justice 115

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Chandrachud observed that there is a distinction between Articles 356 and 123.

In the case of the ordinance making power of the President under Article 123, it

was  observed  that  an  ordinance  could  be  disapproved  by  a  resolution  of

Parliament  and  would  cease  to  operate  even  before  the  prescribed  period.

However, under Article 356, a proclamation had an assured life of two months.

This was also noted in the judgment of Justice Bhagwati. Be that as it may, the

significance  of  the  nine  Judge  Bench  decision  in  S  R  Bommai lies  in  its

elucidation  of  the  consequences  of  a  disapproval  or  non-approval  of  a

proclamation by Parliament. In such an event, it was held that disapproval or

non-approval  amounts  to  its  negation  by  Parliament;  a  statement,  that  the

action of the President was not justified or warranted and that it shall no longer

continue. The necessary consequence is that the status quo ante would revive.

The  contrary  view  in  State  of  Rajasthan, would  deprive  Parliament  of  its

control  and supremacy. The rationale of  the decision of  the majority  on this

aspect is that if the status quo ante was not to revive despite the disapproval or

non-approval of a proclamation by Parliament, parliamentary supremacy would

give way to the supremacy of the executive.  

65 The Constitution has in its  provisions used different  phrases including

“repeal”,  “void”,  “cease to have effect”  and “cease to operate”.  In  Keshavan

Madhava Menon  v. State of Bombay59, Justice Fazl Ali in the course of his

dissenting  opinion  noticed  the  use  of  these  phrases  in  the  following

observations :

59(1951) SCR 228 116

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“25. A reference to the Constitution will show that the framers thereof  have used the word “repeal” wherever necessary (see Articles  252,  254,  357, 372 and 395). They have also used such words as “invalid” (see Articles 245, 255 and 276), “cease to have effect” (see Articles 358 and 372), “shall be inoperative”, etc. They have used the word “void” only in two articles, these being Article 13(1) and Article 154, and both these articles deal with cases where a certain law is repugnant to another law to which  greater  sanctity  is  attached.  It  further appears  that  where  they  wanted  to  save  things done or omitted to be done under the existing law, they have used apt language for the purpose; see for example Articles 249, 250,357, 358 and 369. The thoroughness and precision which the framers of the Constitution have observed in the matters to which reference has been made, disinclines me to read into Article 13(1) a saving provision of the kind which we are asked to read into it.”  

These phrases have different connotations: each cannot be equated with the

other.  Consequently,  the  court  should  be  careful  to  not  attribute  to  the

expression “cease to operate” the same meaning as the expression “void”. This

is of particular significance because clause 3 of Article 213 uses the expression

“void” in relation to an ordinance which makes a provision which would not be

valid  if  enacted  in  an act  of  the legislature  of  the state  assented  to  by  the

Governor. Such a provision contained in an ordinance is declared to be void by

clause 3 of Article 213. Evidently, when the framers wished to indicate that a

provision of an ordinance would be void in a certain eventuality, the Constitution

has  expressly  used  that  phrase.  This  would  militate  against  equating  the

expression “cease to operate”  with the expression “void”.  Both have distinct

connotations. Particularly, where the same constitutional article has used both

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phrases – ‘cease to operate’ (in clause 2) and ‘void’ in (clause 3) one cannot be

read to have the same meaning as the other.     

66 An ordinance which has ceased to operate is not void. As an instrument,

it is not still–born. During the tenure of the ordinance, it has the same force and

effect as a law enacted by the legislature.  

67 Significantly,  the  expression  “cease  to  operate”  in  Article  213(2)(a)

applies both to an ordinance whose tenure expires after the prescribed period

as well as in relation to an ordinance which is disapproved by the legislature.

The  content  of  the  expression  cannot  hence  mean  two  separate  things  in

relation to the two situations. The issue which needs elaboration is whether an

ordinance  which  by  its  very  nature  has  a  limited  life  can  bring  about

consequences  for  the  future  (in  terms  of  the  creation  of  rights,  privileges,

liabilities and obligations) which will enure beyond the life of the ordinance. In

deciding this issue, the court must adopt an interpretation which furthers the

basic  constitutional  premise  of  legislative  control  over  ordinances.  The

preservation  of  this  constitutional  value  is  necessary  for  parliamentary

democracy to survive on the sure foundation of the rule of law and collective

responsibility of the executive to the legislature. The silences of the Constitution

must  be  imbued  with  substantive  content  by  infusing  them with  a  meaning

which enhances the rule of law. To attribute to the executive as an incident of

the power to frame ordinances, an unrestricted ability to create binding effects

for posterity would set a dangerous precedent in a parliamentary democracy.

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The court’s interpretation of the power to frame ordinances, which originates in

the executive arm of government, cannot be oblivious to the basic notion that

the primary form of law making power is through the legislature. Hence, the

interpretation which the court places on the ordinance making power must be

carefully structured to ensure that the power remains what the framers of our

Constitution intended it  to be: an exceptional  power to meet a constitutional

necessity.          

68 We have already expressed our reasons for coming to the conclusion

that the basic foundation upon which the decision of the Constitution Bench in

Bhupendra Kumar Bose rested is erroneous. The Constitution Bench equated

an ordinance with a temporary act enacted by the competent legislature. This

approach,  with  respect,  fails  to  notice  the  critical  distinction  between  an

enactment  of  a  competent  legislature  and  an  ordinance.  The  constitutional

power of promulgating ordinances is carefully conditioned by the requirements

spelt out in Articles 123 and 213. The power is subject to limitations both of a

durational  and  supervisory  character.  The  intent  of  the  framers  of  the

Constitution, as reflected in the text of Article 123 and Article 213, is to subject

to the ordinance making power to Parliamentary control.  The enduring rights

theory which was accepted in the judgment in  Bhupendra Kumar Bose was

extrapolated from the consequences emanating from the expiry of a temporary

act.  That  theory  cannot  be  applied  to  the  power  to  frame  ordinances.

Acceptance of the doctrine of enduring rights in the context of an ordinance

would lead to a situation where the exercise of power by the Governor would 119

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survive in terms of the creation of rights and privileges, obligations and liabilities

on the hypothesis that these are of an enduring character. The legislature may

not have had an opportunity to even discuss or debate the ordinance (where,

as in the present case, none of the ordinances was laid before the legislature);

an ordinance may have been specifically disapproved or may have ceased to

operate upon the expiry of the prescribed period. The enduring rights theory

attributes a degree of permanence to the power to promulgate ordinances in

derogation of parliamentary control  and supremacy. Any such assumption in

regard to the conferment of power would run contrary to the principles which

have been laid  down in  S R Bommai.  The judgment  in  T Venkata  Reddy

essentially follows the same logic but goes on to hold that if Parliament intends

to reverse matters which have been completed under an ordinance, it would

have to enact a specific law with retrospective effect. This, in our view, reverses

the constitutional ordering in the regard to the exercise of legislative power.  

69 The  issue which  confronts  itself  before  the  court  is  whether  upon an

ordinance  ceasing  to  operate,  either  as  a  result  of  its  disapproval  by  the

legislature or upon its expiry after the prescribed period of six months of the

assembling  of  the  legislature,  all  consequences  that  have  ensued  would

necessarily  stand  effaced  and  obliterated.  The  judgment  of  Justice  Sujata

Manohar  in the referring order in the present case adverted to the ambiguity

inherent  in  the  expression  “permanent  effect”  and  “rights  of  an  enduring

character”. The Bench consisting of Justice Sujata Manohar and Justice D P

Wadhwa, being a bench of two learned judges, was confronted with the binding 120

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effect of the decisions of the two Constitution Benches in  Bhupendra Kumar

Bose and T Venkata Reddy. Within the framework provided by the two binding

precedents,  Justice Sujata Manohar held that the effect of an ordinance can

be considered as permanent when it is irreversible or when it would be “highly

impractical or against public interest to reverse it”. A three-fold test has been

laid down : the first is of the irreversibility of effect; the second, the impracticality

of reversing a consequence which has ensued under the ordinance and the

third, is the test of public interest. The principle which we will lay down is not

constrained  by the  two Constitution  Bench decisions  which  propounded the

enduring rights theory, once we have held that the theory has been incorrectly

lifted from the context of a temporary law and applied to the ordinance making

power.

70 The  judgment  of  Justice  Sujata  Manohar  does  indicate  (as  one

commentator on the subject states), that the learned judge “is willing to engage

in some form of heightened scrutiny”60. Yet, the three-fold test of irreversibility,

impracticality  or  public  interest  may,  if  broadly  applied,  cover  almost  every

situation where an ordinance has ceased to operate. A demolition may have

been effected. An order of conviction may have been passed upon a trial. An

acquisition  of  an  industrial  undertaking  may  be  made.  Large-scale

regularisation of contractual or casual employees may be effected. Legalisation

of unauthorised structures may be made. A myriad different situation can be

contemplated. Must every action under an ordinance produce binding rights,

60Shubhankar Dam (Supra) (Id at page 151) 121

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obligations  and  liabilities  which  will  survive  its  demise?  In  our  view,  in

determining the issue the over-arching consideration must be the element of

public interest or constitutional necessity. Ultimately, it is this element of public

interest  which  would  have guided  the court  in  Bhupendra Kumar Bose  in

holding that the validation of an election by an ordinance should not be set at

naught (though the logic adopted by the court was flawed). Bhupendra Kumar

Bose  also raises troubling aspects independently on its facts because in that

case  a  Bill  which  was  moved  before  the  state  legislature  to  incorporate

provisions similar to those of the ordinance was defeated. Be that as it may, in

deciding  to  mould  the  relief  the  effort  of  the  court  would  be  to  determine

whether undoing what has been done under the ordinance would manifestly be

contrary  to  public  interest.  Impracticality  and irreversibility  in  that  sense are

aspects which are subsumed in the considerations which weigh in the balance

while deciding where public interest lies. Impracticality cannot by itself be raised

to  an  independent  status  because  it  would  then  be  simple  enough  for  the

executive  to  assert  the  supposed  complexities  in  undoing  the  effects  of  an

ordinance.  Since  the  basic  constitutional  value  which  is  at  issue  is  of

parliamentary supremacy and control, the moulding of relief can be justified in

cases  involving  grave  elements  of  public  interest  or  constitutional  necessity

demonstrated by clear and cogent material.  

L Laying of ordinances before the legislature

71 Article  213(2)(a)  requires  an  ordinance  to  be  laid  before  the  state

legislature. A similar requirement is contained in Article 123(2)(a). Neither Article 122

Page 123

123 nor Article 213 specifically provide for when an ordinance should be laid

before  the  legislature  upon  its  reassembling.  The  position  in  relation  to

Parliament is set out by Subhash C Kashyap, in his work titled “Parliamentary

Procedure – the law, privileges, practice and precedents61.” Rule 71 which the

author extracts is as follows :

“Rule71.  Statement  regarding  Ordinances  –  (1) Whenever a Bill seeking to replace an Ordinance with  or  without  modification  is  introduced  in  the House,  there  shall  be  placed  before  the  House along  with  the  Bill  a  statement  explaining  the circumstances which had necessitated immediate legislation by Ordinance.

(2)  Whenever  an  Ordinance,  which  embodies wholly or partly or with modification the provisions of a Bill pending before the House is promulgated a  statement  explaining  the  circumstances  which had  necessitated  immediate  legislation  by Ordinance  shall  be  laid  on  the  Table  at  the commencement  of  the  session  following  the promulgation  of  the  Ordinance”. (emphasis supplied)

The procedure of Parliament (see Kashyap supra) is that where on the first day

of the session, the House is to adjourn after obituary references ordinances are

laid  on  the  table  on  the  following  day’s  sitting.  Normally,  ordinances

promulgated by the President are laid on the table on the first sitting of  the

House after the promulgation.  

72 The Rules of Procedure and Conduct of Business in the Bihar Vidhan

Sabha62 contain a provision in  Rule 140 which indicates that  copies of  the

61Universal Law Publishing Co. Pvt. Ltd (Id at page 16,17) 6210th Edition Bihar Vidhan Sabha Patna

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ordinance have to be made available to members of the legislative assembly

“as soon as possible” after the Governor has promulgated an ordinance. Within

a period of  six weeks of  the legislature reassembling (that  being the period

during which the ordinance will continue to operate) any member may move a

resolution approving the ordinance with a notice of three days.

73 The importance of tabling an ordinance before the legislature is that it

enables  the  legislature  to  act  in  furtherance  of  its  constitutional  power  of

supervision  and  control.  The legislature  is  entitled  to  determine  whether  an

ordinance should be disapproved. The need for and expediency of issuing an

ordinance can be discussed and debated by the legislature. The Government

which  is  accountable  to  and  bears  collective  responsibility  towards  the

legislature  may  bring  a  Bill  along  the  lines  of  the  ordinance  (or  with  such

modifications  as  are  considered  appropriate)  before  the  legislature  in  which

event, the Bill can be debated upon and discussed before a vote is taken. The

ordinance making power is not a parallel source of legislation. Promulgated at a

time when the legislature is not in session, the constitutional process involved

postulates an intersection between the exercise of the ordinance making power

with the constitutional authority of the legislature over an ordinance which has

been promulgated by the President or the Governor.

74 The  failure  to  place  an  ordinance  before  the  legislature  constitutes  a

serious  infraction  of  a  constitutional  obligation  which  the  executive  has  to

discharge  by  placing  the  ordinance  before  the  legislature.  The laying  of  an

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ordinance  facilitates  the  constitutional  process  by  which  the  legislature  is

enabled to exercise its control. Failure to lay an ordinance before the legislature

amounts to an abuse of the constitutional process and is a serious dereliction of

the constitutional obligation. In the case of delegated legislation, Parliamentary

or state enactments may provide a requirement of laying subordinate legislation

before  the  legislature.  It  is  well-settled  that  a  requirement  of  merely  laying

subordinate  legislation  before  the  House  of  the  legislature  is  directory.  But

where  a  disapproval  of  subordinate  legislation  is  contemplated,  such  a

requirement is mandatory. In Quarry Owners’ Association v. State of Bihar63

this Court held :

“45…..Laying before the Houses of Parliament is done in  three different  ways.  Laying of  any  rule may be subject to any negative resolution within a specified  period  or  may  be  subject  to  its confirmation.  This  is  spoken  of  as  negative  and positive resolution respectively. Third may be mere laying before the House. In the present case, we are  not  concerned  with  either  the  affirmative  or negative  procedure  but  consequence  of  mere laying before the legislature…..

48…..Even  if  submission  for  the  appellants  is accepted that mere placement before a House is only  for  information,  even then such information, inherently  in  it  makes  the  legislature  to  play  an important role as aforesaid for keeping a check on the  activity  of  the  State  Government.  Such placement cannot be construed to be non est. No act  of  Parliament  should  be  construed  to  be  of having  no  purpose.  As  we  have  said,  mere discussion and questioning the Ministry concerned or authority in the House in respect of such laying would  keep  such  authority  on  guard  to  act  with circumspection which is a check on such authority,

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especially when such authority is even otherwise answerable to such legislature.” (Id at p. 689)

75 The requirement of an ordinance being laid before the legislature cannot

be equated with the laying of subordinate legislation. An ordinance is made in

the exercise of the legislative power of the Governor which is subordinate to

and not a stream which runs parallel to the power of law making which vests in

the  state  legislatures  and  Parliament.  Any  breach  of  the  constitutional

requirement of laying an ordinance before the legislature has to be looked upon

with grave constitutional disfavour. The Constitution uses the express “cease to

operate”  in  the  context  of  a  culmination  of  a  duration  of  six  weeks  of  the

reassembling of the legislature or as a result of a resolution of disapproval. The

framers introduced a mandatory requirement of an ordinance being laid before

the legislature upon which it would have the same force and effect as a law

enacted by the legislature, subject the condition that it would cease to operate

upon the expiry of a period of six weeks of the reassembling of the legislature

or  earlier,  if  a  resolution  of  disapproval  were  to  be  passed.  The  ‘cease  to

operate’  provision  is  hence  founded  on  the  fundamental  requirement  of  an

ordinance being placed before  the legislature.  If  the executive has failed to

comply  with  its  unconditional  obligation  to  place  the  ordinance  before  the

legislature, the deeming fiction attributing to the ordinance the same force and

effect as a law enacted by the legislature would not come into existence. An

ordinance which has not been placed before the legislature at all cannot have

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the same force and effect as a law enacted and would be of no consequence

whatsoever.  

The Constitution has not made a specific provision with regard to a situation

where an ordinance is not placed before a legislature at all. Such an eventuality

cannot  be  equated  to  a  situation  where  an  ordinance  lapses  after  the

prescribed period or is disapproved. The mandate that the ordinance will cease

to operate applies to those two situations. Not placing an ordinance at all before

the legislature is an abuse of constitutional process, a failure to comply with a

constitutional  obligation.  A government  which  has  failed  to  comply  with  its

constitutional  duty and overreached the legislature cannot  legitimately assert

that  the ordinance which it  has failed to place at  all  is valid till  it  ceases to

operate. An edifice of rights and obligations cannot be built in a constitutional

order on acts which amount to a fraud on power. This will be destructive of the

rule  of  law. Once an ordinance has been placed before  the legislature,  the

constitutional fiction by which it has the same force and effect as a law enacted

would come into being and relate back to the promulgation of the ordinance. In

the absence of  compliance with the mandatory  constitutional  requirement  of

laying  before  the  legislature,  the  constitutional  fiction  would  not  come  into

existence.  In  the  present  case,  none of  the ordinances  promulgated  by the

Governor of Bihar were placed before the state legislature. This constituted a

fraud on the constitutional power. Constitutionally, none of the ordinances had

any force and effect. The noticeable pattern was to avoid the legislature and to

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obviate legislative control. This is a serious abuse of the constitutional process.

It will not give rise to any legally binding consequences.  

M Re-promulgation in the present case  

76 The judgment of the Constitution Bench in  D C Wadhwa was delivered

on 20 December 1986. The Constitution Bench made it clear, as a matter of

constitutional  principle,  that  the  executive  cannot  subvert  the  democratic

process  by  resorting  to  a  subterfuge  of  re-promulgating  ordinances.  The

Constitution  Bench  held  that  it  would  be  a  colorable  exercise  of  power  for

government to ignore the legislature and to re-promulgate ordinances. Perhaps

there is justification in the critique of the judgment that the Constitution Bench

ultimately left the matter (having invalidated one of the Bihar ordinances which

still held the field) to an expression of hope which read thus :

“ we hope and trust that such practice shall not be continued  in  the  future  and  that  whenever  an ordinance is made and the government wishes to continue the provisions of  the ordinance in force after the reassembling of the legislature, a Bill will be brought before the legislature for enacting those provisions  into  an  act.  There  must  not  be Ordinance-Raj in the country.”  

77 The Constitution Bench carved out an exception where an ordinance may

have to be re-promulgated by the Governor where it has not been possible for

Government to introduce and push through in the legislature a Bill containing

the  same  provisions  as  an  ordinance  because  of  an  excess  of  legislative

business  for  a  particular  session.  This  exception  has been criticized  on the

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ground that however pressing is the existing legislative business, it lies in the

discretion of the government to seek an extension of the legislative session for

converting an ordinance into an enactment of the legislature. Moreover, it has

been questioned as to whether a re-promoulgated ordinance would meet the

basic constitutional requirement of the existence of circumstances bearing upon

the satisfaction of the Governor on the need to take immediate action. Be that

as it may, it is not the case of the State of Bihar in the present case that there

was any reason or justification to continue with a chain of ordinances nor is

there  any  material  before  the  court  to  indicate  exceptional  circumstances

involving a constitutional necessity.  

78 The  two  learned  judges  (Justice  Sujata  Manohar  and  Justice  Wadhwa)

agreed in coming to the conclusion that the ordinances which were issued after

the first would amount to a fraud on constitutional power. They however differed

in regard to the validity of the first ordinance. Justice Sujata Manohar held that

all  the  ordinances  formed  a  part  of  a  chain  of  acts  designed  to  nullify  the

scheme of Article 213. In this view, each of the ordinances took colour from one

another,  notwithstanding  some  departures  in  the  scheme  of  the  fourth  and

subsequent  ordinances.  The entire  exercise  was held  to  be a  fraud on  the

power conferred by Article 213 since the executive had no intention of placing

any of the ordinances before the legislature. Justice Wadhwa on the other hand

took the view that the effect of the first ordinance was of an enduring nature and

held that what the first ordinance ordained was accomplished and its effect was

irreversible.  In this view, the ordinance was like a temporary law which had 129

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accomplished its  purpose.  Justice Wadhwa held  that  once the property  has

vested in the state there had to be an express legislation taking away vested

rights.  The  conferment  of  rights  on  the  employees  was  held  to  be  of  an

enduring  character  which  could  not  be  taken  away  merely  because  the

ordinance, like a temporary statute ceased to operate.  

79 We have already  adduced reasons  earlier  for  overruling  the  enduring

rights theory based on the analogy of a temporary statute.  Moreover as we

have indicated, it would not be correct to assert that these enduring rights could

be set at naught only by an act of the legislature enacted with retrospective

effect. The basic infirmity is that none of the ordinances, including the first, was

laid before the legislature.  There was a fundamental  breach of  a mandatory

constitutional requirement. All the ordinances formed a part of one composite

scheme  by  which  the  Governor  of  Bihar  promulgated  and  re-promulgated

ordinances. That chain or link commenced from the promulgation of the first

ordinance.  Hence,  in  the  very  nature  of  things  it  would  not  be  possible  to

segregate the first ordinance since it forms an intrinsic part of a chain or link of

ordinances  each  of  which  and  which  together  constitute  a  fraud  on

constitutional power.  

N Conclusion  

80 In summation, the conclusions in this Judgment are as follows :

(i) The power which has been conferred upon the President under Article

123 and the Governor under Article 213 is legislative in character. The power is 130

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conditional  in nature:  it  can be exercised only when the legislature is not in

session and subject to the satisfaction of the President or, as the case may be,

of  the  Governor  that  circumstances  exist  which  render  it  necessary  to  take

immediate action;

(ii) 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; and (ii) it will cease to operate six weeks after the

legislature has reassembled or, even earlier  if  a resolution disapproving it  is

passed. Moreover, an Ordinance may also be withdrawn;  

(iii) 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;

(iv) The Ordinance making power does not constitute the President or the

Governor into a parallel  source of  law making or an independent  legislative

authority;

(v) 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;

(vi) The requirement of laying an Ordinance before Parliament or the state

legislature is a mandatory constitutional obligation cast upon the government.

Laying  of  the  ordinance  before  the  legislature  is  mandatory  because  the

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legislature has to determine: (a) The need for, validity of  and expediency to

promulgate an ordinance; (b) Whether the Ordinance ought to be approved or

disapproved; (c) Whether an Act incorporating the provisions of the ordinance

should be enacted (with or without amendments);

(vii) 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;

(ix) Article  213(2)(a)  provides  that  an  ordinance  promulgated  under  that

article  shall  “cease  to  operate”  six  weeks  after  the  reassembling  of  the

legislature  or  even  earlier,  if  a  resolution  disapproving  it  is  passed  in  the

legislature.  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

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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

(Article 213(3)). The framers having used the expressions “cease to operate”

and  “void”  separately  in  the  same provision,  they  cannot  convey  the  same

meaning;

(x) 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. The judgments are also no longer good law in view of

the decision in S R Bommai;

(xi) 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;   

(xii) 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

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public interest and constitutional necessity. This would include the issue as to

whether the consequences which have taken place under the Ordinance have

assumed an irreversible character. In a suitable case, it would be open to the

court to mould the relief; and

(xiii) 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 scrutinise 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.  

81 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. However, it

would be necessary for us to mould the relief (which we do) by declaring that no

recoveries shall be made from any of the employees of the salaries which have

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been paid during the tenure of the ordinances in pursuance of the directions

contained in the judgment of the High Court.  

82 The reference is answered in these terms.

83 We acknowledge  and  value  the  able  assistance  rendered  by  learned

counsel who appeared before the court :

Shri  Salman  Khurshid,  Shri  Rakesh  Dwivedi,  Shri  Amarendra  Saran,  Shri

Mukesh Giri, Shri C U Singh, senior advocates and Shri Ranjit Kumar, Solicitor

General. Their industry and research have provided us valuable inputs.   

............................................... J                                                [S.A. BOBDE]

............................................... J [ADARSH KUMAR GOEL]

............................................... J [UDAY UMESH LALIT]

............................................... J [DR D Y CHANDRACHUD]

............................................... J                          [L. NAGESWARA RAO]  

New Delhi   January  02, 2017

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