TMI Blog2017 (1) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Moreover, an Ordinance may also be withdrawn; (iii) The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance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 legislature has to determine: (a) The need for, v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Venkata Reddy v. State of Andhra Pradesh(1985) 3 SCC 198 Bench of 5 Judges 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 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. 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 Ordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? (c) Thirdly, the Executive may, in accordance with Article 213(2)(a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance 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 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 aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 Bose(1962 Supp (2) SCR 380 Bench of 5) Judges read with Bhupendra Kumar Bose v. State of Orissa. OJC No.12 of 1959 decided on 20.03.10959 by the Orissa High Court [MANU/OR/0014/1960] 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 23rd Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porary 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]. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 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 anybod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nact 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fface 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. 64. I am afraid it is difficult to accept th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinance 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 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. (1987) 1 SCC 378 Bench of 5 Judges) There is no universal or blanket prohibition again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rative 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 Three-Judges who in-turn referred the same to a bench of Five Judges. Since, however, doubts were raised about the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings 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 Bihar(1998) 5 SCC 643), 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 judges Justices SP Bharucha, GB Pattanaik and S RajendraB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989. The life of the first Ordinance 19 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 Ordinances (Ordinance 14 of 1990) was promulgated. The next session of the Vidhan Sabha took place between 22 June 1990 and 9 August 1990, as a 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 scho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine 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. 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 Ordinances (Ordinance 10 of 1991) 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. (Ordinance 31 of 1991) The next session of the Vidhan Sabha took place from 1 December 1991 to 18 December 1991. Upon the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Constitution Bench in D C Wadhwa. Moreover, none of the Ordinances has been laid before the 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively, 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 valida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, [2010] 3 WLR 1526 ] 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 prescribe or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 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 situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and an Act passed by Parliament . The same approach was adopted by another Constitution Bench of this Court in AK Roy v. Union of India(1982) 1 SCC 271) 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 (id at para 14 page 290). 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 Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 37 In R C Cooper v. Union of India(1970) 1 SCC 248), a Bench of eleven Judges of this Court held that the presidential power to promulgate an ordinance is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction 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 India(1971) 3 SCR 9). 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) 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciously 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 governan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature has convened in session, the need for an ordinance is necessarily brought to an end since it is then for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiated 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 as (The Oxford English Dictionary (II Edition) : Clarendon Press, pg. 1014) : to stop, give over, discontinue, desist; to come to the end. P Ramanatha Aiyar s, The Major Law Lexicon(The Major Law Lexicon (IV Edn. Pg. 1053) ) defines the expression cease to mean discontinue or put an end to . Justice C K Thakker s Encyclopaedic Law Lexicon (Ashoka Law House, New Delhi (india) pg. 879) 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 Dictionary(XthEdn. Pg. 268). 47 In a judgment of a Division Bench of the Andhra Pradesh High Court in Mahanat Narayan Dessjivaru v. State of Andhra (AIR (1959) AP 471), it was held that once a scheme and a sanad we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, (AIR (1955) SC 84) 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 Punjab legislature re-enacting all the provisions of the repealed ordinance. The respondent was prosecuted unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving 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 General Clauses Act. What then is the touch-stone on which this question should be resolved? 55 In State of Orissa v. Bhupendra Kumar Bose(1962) Supp. (2) SCR 380), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 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 Pradesh (1985) 3 SCC 198 ). 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 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Rajasthan v. Union of India(1977) 3 SCC 592), 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 tempo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Shubhankar Dam (Supra) (Id at page 151). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaining 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 Sabha (10th Edition Bihar Vidhan Sabha Patna ) contain a provision in Rule 140 which indicates that copies of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred 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 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 mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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