On 2nd January 2017, a seven-Judge Bench of the Supreme Court, in a ratio of 5:2, held that unfettered re-promulgation of ordinances is unconstitutional.
The Constitution allows the President/Governor to promulgate ordinances, which are authoritative orders that enable the government to take immediate legislative action. The Bench declared that under the Constitution, the power of the President under Article 123 and of the Governor under Article 213 to issue ordinances is not immune from judicial review.More importantly, it held that the re-promulgation of ordinances without placing these ordinances before the legislature is a subversion of the democratic legislative process.
In the case, a series of ordinances were promulgated by the Governor of Bihar, from 1989 onwards, that provided for the taking over of 429 of the 651 Sanskrit schools in the State. The services of teachers and other employees were transferred to the Government. Hence, they claimed their salary from the Government. None of these ordinances was laid before the Legislature, and no law was passed with regard to this. As soon as a previous ordinance ceased to operate, a fresh one was issued when the Legislature was not in session. Thus, a writ petition was filed before the High Court of Patna to resolve the matter.
The High Court of Patna dismissed the writ petition and held that the repeated re-promulgation of the ordinances was unconstitutional. The High Court relied on the Constitution Bench decision in D.C. Wadhwa and Ors. v. State of Bihar and Ors. [(1987) 1 SCC 378].
The decision was appealed before a two-judge bench of the Supreme Court in 1998. Both the judges – Justice Sujata Manohar and Justice D P Wadhwa – held that the re-promulgated Ordinances were invalid. However, they differed on the decision as to whether the first ordinance was valid or not. Thus, they referred the matter to a 3 judge bench. In 1999, the Bench of three judges referred it to a Bench of five judges as it raised substantial questions relating to the Constitution. On 23rd November 2004, the matter was referred to a larger Bench of seven judges.
The three main questions before the Supreme Court were:
(i) Whether an ordinance be mandatorily tabled before the Legislature under Article 213.
(ii) Whether re-promulgation of an ordinance is permissible.
(iii) Whether an act under an ordinance is valid after the ordinance ceases to exist.
The majority judgement, authored by Justice Chandrachud, on behalf of himself, and Justices Bobde, Goel, Lalit and Nageswara Rao held that although the Constitution empowers the President/Governor to issue ordinances, it is a conditional legislative power. It can only be exercised when the Legislature is not in session. Though an ordinance has the same force and effect as a law temporarily, it does not confer upon the President/Governor an independent legislative power.
Further, there is a mandatory constitutional obligation on the government to lay the ordinance before the Legislature by virtue of Article 213 itself. This is done for the Legislature to decide on:
(i) the need, validity, and expediency to issue the ordinance;
(ii) whether the ordinance should be approved;
(iii) whether a Statute must be enacted in furtherance of the ordinance.
The Court, emphasizing the decision in DC Wadhwa v. State of Bihar held that such a re-promulgation of ordinances constitutes a fraud on the Constitution. Ordinances are merely emergent powers that must be exercised when the Legislature is not in session and must be tabled before the Legislature when it is back in session. Re-promulgation is constitutionally impermissible for two reasons:
(i) Such an act attempts to circumvent the Legislature, which is the primary law-making authority;
(ii) It defeats the purpose of Articles 123 and 231 which prescribe a limited power to issue ordinances.
It was further held that any act, right, privilege, obligation or liability to survive after an ordinance has ceased to operate, must satisfy three tests:
(i) That the effect of the ordinance is irreversible;
(ii) That reversing the consequence of the ordinance is impractical;
(iii) That there is a compelling public interest to continue the effect of the ordinance.
The ordinance-issuing power under Articles 123 and 231 are not immune from judicial review – the Court is empowered to adjudge whether there is a valid exercise of the power. Moreover, this power is subject to legislative control, under the principle of legislative supremacy. The Executive are collectively answerable to the Legislature.
In the present case, Chief Justice (as he then was) T.S Thakur rendered a separate concurring opinion, stating that it is an open question whether Articles 123 and 213 make it obligatory for the Government to place the ordinance before the Legislature.
The dissenting opinion, by Justice Madan Lokur, opined that Article 213 does not make it mandatory for an ordinance to be laid before the Legislature. Since an ordinance acquires the force of law, its validity cannot depend on the contingency of whether or not it was tabled before the Legislature.
Thus through this judgment, the Supreme Court held that all the ordinances constitute a fraud on the Constitution since they were not placed before the Legislature and were re-promulgated in violation the decision in DC Wadhwa. Therefore, the ordinances did not confer the status of Government employee on the teachers. However, the Court held that the salary already given by the Government need not be recovered from the teachers.