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Rolling back Ordinance Raj


Context

Article deals with the Supreme Court’s verdict in the Krishna Kumar Singh vs State of Bihar and how it has put an important check on the rampantly abused power of promulgating ordinances

Issue: Power to issue ordinance under Article 123 & Article 213

 Power to promulgate ordinances

Author states that the power to promulgate ordinances goes against the very objective which the framers of the constitution set out to achieve i.e. separation of powers

  • Separation of powers: The founders’ aim was always to impose a separation of power between the three recognised wings of government. In this arrangement, the legislature (Parliament at the Centre, and the Assemblies and the Councils in the States) is tasked with the primary job of making laws; the executive’s role is to administer the country by enforcing these laws; and the judiciary interprets the laws, sees if they are being followed, and, where required, reviews them to ensure that they are constitutionally compliant
  • Neither a check nor a balance: The executive’s power to issue ordinances, therefore, goes against this structure for this power acts neither as a check nor as a balance on the authority exercised by the other branches of government

An exceptional measure

Author states that a reading of the constitution makes it clear that the authority to issue ordinances is to be used only to meet the emergent demands of extraordinary situations

  • Article 123, which defines the ordinance-making power of the Union executive, states that when both Houses of Parliament are not in session, if the President is satisfied that “circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require”
    • Nature of effect of an ordinance: It further provides that any ordinance shall have the same force and effect as a statute of Parliament, provided it is laid before both Houses.
    • To be laid before house within six weeks: The ordinance so made will “cease to operate at the expiration of six weeks from the reassembly of Parliament”, or if Parliament at any time before the conclusion of the period passes resolutions disapproving of the ordinance
  • Article 213 of the Constitution places on the Governor, acting on the advice of the Council of Ministers of his State, the power to pass ordinances on subjects of State authority.

Actual situation

Seldom used as an exceptional measure: In practice, however, ordinances have scarcely been used as a purely exceptional measure. They are used to scuttle and bypass the democratic requirements & to overcome numerical shortcomings thereby using ordinance-making power as an alternative tool of legislation

  • Most recently, the Central executive had issued an ordinance in 2014, which it subsequently re-promulgated three times without approval, to overturn significant benefits guaranteed by the land acquisition law enacted by Parliament in 2013

 Krishan Kumar Singh vs State of Bihar

Bihar government had issued a series of ordinances to take over 429 Sanskrit schools transferring in the process the services of all the teachers and other employees of the schools to the State government

  • 1st ordinance: The first ordinance, which was issued in 1989, was followed by a succession of five ordinances, none of which was placed before the State legislature. Ultimately, the government failed to enact a statute confirming the terms of the ordinances, and the last of them was allowed to lapse on April 30, 1992
  • Plea filed by employees in HC: The employees of the schools, who stood discharged from service, as a result of the termination of the ordinances, took the State government to court

Questions before SC
Author states that when the case ultimately reached the seven-judge bench for arguments there were two fundamental questions to be answered:

  1. Whether the ordinances issued by the Bihar government were constitutionally valid
  2. Whether the petitioners had derived any legal right that survived the termination of the ordinances or in simple terms, 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?

 

SC judgement in Krishna Kumar Singh case

Q1: Whether the ordinances issued by the Bihar government were constitutionally valid

Ruling: The SC bench held that not only repromulgated ordinances, but even ordinances issued at the first instance, are subject to judicial review

  • Investigate if there has been a fraud: Bench ruled that the court, in these cases, he held, will not enquire into the adequacy or sufficiency of the material before the President or the Governor, but it can investigate to see if there has been either a fraud or an abuse of power committed by the executive
  • Reliance on Bommai case: Here, bench placed reliance on the celebrated S.R. Bommai case (1994), where a nine-judge bench of the court had ruled that the judiciary could strike down a proclamation of emergency when the power had been exercised by the executive to secure an oblique purpose

Q2: Whether the petitioners had derived any legal right that survived the termination of the ordinances or in simple terms, 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? 

Ruling: It ruled that an ordinance is distinct from a temporary legislation, and it therefore doesn’t automatically create rights and liabilities that go beyond its term of operation

  • Effect remains until ordinance is operational: SC ruled that as ordinance is not a creation of legislature unlike a temporary statute or law so the orders under ordinance have the same force and effect of a legislation only so long as they are operational
    • Public interest test: In other words, once the conditions imposed by Article 123 or Article 213, as the case may be, are violated, the question of what effects will survive from the ordinance will have to be independently assessed. In such circumstances, the court must examine whether the undoing of acts performed under an ordinance would run counter to public interest

Author’s contention

Public interest test problematic: Author contends that the public interest test as envisaged by SC judgement could prove to be problematic in future.

  • Case of irreversible outcomes: There may well be cases where an ordinance creates outcomes that are irreversible, despite public interest demanding its reversing

A vital check

Author states that the court’s verdict has to be seen as placing a vital check on what has until now been a power rampantly abused by the executive

Conclusion

Author concludes by stating that inconvenient as legislative debate and deliberation can be, the legislature constitutes a critical foundation of our democracy


 

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