A seven-judge bench of the Supreme Court today began hearing arguments in Krishna Kumar Singh vs State of Bihar. The case arose out of an original reference from a two-judge bench in 1998. The State of Bihar had taken over Sanskrit Schools through an ordinance passed in 1989. The ordinance was re-promulgated a few times, before lapsing in 1992. The teachers of the schools then filed a petition before the High Court contending that they had become – and continued to remain – government servants, with all attendant benefits. The High Court rejected the plea.
Before the Supreme Court, therefore, there were two questions: first, were the Ordinances valid? And secondly, what was the effect of acts that were taken under an Ordinance which eventually lapsed? Recall that Articles 123 and 213 of the Constitution authorise the President and the Governors (i.e., the political executive) to legislate via “ordinances” under certain specific circumstances. The basic idea is that in cases of urgency, and when the Parliament is not in session, the Executive can temporarily take over the job of law-making to deal with emergent situations. Ordinances have to be ratified within six weeks of Parliament reassembling, otherwise they lapse.
The two-judge bench split on both issues. On the first issue, Justice Sujata Manohar held:
“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 first Ordinance is valid, even though all others may be invalid.”
In other words, Sujata Manohar J effectively subjected the ordinances to judicial review, holding that there would have to be some material demonstrating the circumstances that necessitated “immediate action” on part of the Governor to pass an ordinance, as required by Article 213.
On the second issue, Sujata Manohar J held that whether or not any acts done, or rights accrued under an ordinance would have a permanent effect even after the ordinance lapsed or, for any other reason, was not ratified by Parliament, would depend upon the nature of the acts or the rights. Consequently, she held:
“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.”
Justice D.P. Wadhwa disagreed on both counts. Surveying the case law, he held that an ordinance has the same effects as “law”, and should be understood as having the “attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution.” Consequently, on the issue of judicial review, he held that “the Court may not go into the question whether circumstances existed for exercise of power under the provision of the Constitution and as to what was the urgency or emergency to promulgate an ordinance.”
Nonetheless, following D.C. Wadhwa’s judgment, he struck down the re-promulgated ordinances as being fraudulent exercises of power. On the issue of permanent effect, he compared ordinances to temporary statutes, and held:
“The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its effect was irreversible. 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. Ordinance is like a temporary law enacted by the Legislature and if the law lapses whatever has been achieved thereunder 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 pulled down and land reverted back to the original owner. The only consideration to examine the Ordinance is to see if the effect is of an enduring nature and if the Ordinance has accomplished what it intended to do.”
Because of the disagreement between the two judges, the question was referred to a higher bench, and after being progressively referred over the years, is now finally being heard and decided by seven judges of the Supreme Court. The questions are twofold:
(a) What is the scope of judicial review over the political executive’s ordinance-making power?
(b) Do the acts undertaken under an ordinance which eventually fails to be ratified by Parliament and become law survive even after the ordinance ceases to exist?
The importance of this case can scarcely be understated, as the Court’s judgment will have far-reaching effects upon the balance of power between the Parliament and the Executive. This case is also best understood in the context of a global concern with how political power is being incrementally transferred from the legislature to the executive, across jurisdictions. This concern was voiced more than forty years ago in Arthur Schlessinger’s famous The Imperial Presidency, and is presently an issue of burning controversy in the U.K. concerning Brexit. The Court’s judgment, therefore, is crucial to the future of the separation of powers under the Indian Constitution.