Re-promulgation of Ordinances Fraud on Constitution: SC

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A seven-judge Constitution bench of Supreme Court, in Krishna Kumar Singh vs. State of Bihar, by a majority of 6:1 ruled that “Repromulgation of ordinances is a “fraud” on the Constitution and a sub-version of democratic legislative processes, especially when the government persistently avoids the placing the ordinances before the legislature”.

The court also held that the satisfaction of the President under Article 123 and of the Governor under Article 213 while issuing ordinances is not immune from judicial review.

Supreme Court held that repromulgation is constitutionally “impermissible” and “defeats constitutional scheme” under which a limited power to frame ordinances has been conferred upon the President and the Governors.

Justice D Y Chandrachud said, “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.”

Other Main Points of Judgement:

Repeated re-promulgation of the ordinances was a fraud on the Constitution especially when the government of the time appears to have persistently avoided the placement of the ordinances before the legislature.

There could be exigencies requiring the repromulgation of an ordinance. However, repromulgation 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 repromulgating an ordinance.

Repromulgation 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.

Repromulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors. The danger of repromulgation 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.

It also referred to Article 213 of the Constitution that describes it as power of the Governor to promulgate ordinances during recess of legislature.

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 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.

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 133 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.

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.

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.

The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

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.

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 134 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).

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.

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 136 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.

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.

Background:

The verdict came on a plea against a series of ordinances issued by the Bihar Governor between 1989 and 1992 regarding the taking over of 429 private Sanskrit schools by the state.

“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,” the verdict penned by Justice Chandrachud said.

The lone dissenting judge, Justice M B Lokur, was of the opinion that the repromulgation of an ordinance by the Governor of a state is not per se a fraud on the Constitution.

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