On the second day of this year, the Supreme Court delivered a landmark judgment as regards the law making powers of the Executive contained in Articles 123 and 213 of the Constitution of India (“Constitution”) which unambiguously lays down the extent and manner in which the said powers could be put to use, thereby elaborating on the instances which would abrogate the essence of these powers. The majority opinion was delivered by Justice D.Y. Chandrachud on behalf of four judges and himself, while Justice Madan B. Lokur and CJI T.S. Thakur delivered separate opinions (only Justice Lokur differing on one of the issues).
Background The first case which authoritatively shunned the practice of “Ordinance Raj” in Indian constitutional practice was D.C. Wadhwa v. State of Bihar[(1987) 1 SCC 378.], wherein an exploited use of Article 213 of the Constitution was challenged before the apex court. The said case witnessed the ability of the Executive (Government of Bihar) to completely oust the purpose of the State Legislature and perpetrate a calculated fraud upon the Constitution by replacing legislative enactments with ordinances for a period of fourteen years at length. The Constitution Bench, taking due note of the same, observed that 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’…The Government cannot bypass the legislature and without enacting the provisions of the ordinance into an Act of the legislature, re-promulgate the ordinance as soon as the legislature is prorogued…If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision.”
However, the said judgment of the apex court remained ignored, and a series of ordinances were promulgated by the then Government of Bihar to take over 429 of the 651 existing private Sanskrit schools in the State, first of which [The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989] was promulgated on the 16th of December, 1989. Notably, none of the ordinances which were promulgated were subjected to the approval of the legislature, as required under Article 213 of the Constitution. Consequently, none of the concerned ordinances were converted into an Act of the State legislature. On the lapse of the last of such ordinances, the teachers who were employed in the said schools claimed to be given the status of government servants by virtue of the acquisition of the schools by the government, hence demanding their respective salaries from the government. The said dispute reached before a division bench of Justice Sujata Manohar and Justice D.P. Wadhwa, as the case titled Krishna Kumar Singh & Anr. v. State of Bihar(“Krishna Kumar I”)[ (1998) 5 SCC 643]. While both the judges concurred on the point of unconstitutionality of the subsequent ordinances promulgated barring the first one, they differed as regards two concerns: first, whether the first ordinance was constitutionally valid, and second, whether the effects of the first ordinance would endure and continue to last even after the lapse of an ordinance, which would hence determine whether the teachers would continue to remain government servants post the lapse of the final ordinance. Owing to the aforementioned difference of opinion, the dispute was eventually referred to a seven judge bench of the present case to break the deadlock as regards the said issues.
(i) Whether an Ordinance must be laid before the Legislature:
Giving literal interpretation to the text of Article 123 and Article 213 of the Constitution (“shall be laid before both Houses of Parliament/shall be laid before the Legislative Assembly”), the apex court held that every ordinance promulgated by the respective head of the Executive must be placed before the concerned legislature to satisfy the procedural requirement of the aforesaid provisions[Para 30 of the Judgment delivered by Justice Chandrachud]. It was further observed that: “Laying of an Ordinance before the state legislature subserves the purpose of legislative control over the Ordinance making power…The placement of an Ordinance before the legislature is a constitutional necessity; the underlying object and rationale being to enable the legislature to determine (i) the need for and expediency of an ordinance; (ii) whether a law should be enacted; or (iii) whether the Ordinance should be disapproved.”[Para 30 of the judgment delivered by J. Chadrachud] Therefore, the Supreme Court held that the laying of an ordinance before the legislature is a mandatory requirement under Article 123 and Article 213, and is not merely directory in nature.
(ii) Whether satisfaction of the President and the Governor is subject to judicial review:
Justice Chandrachud, while taking note of the changes brought about in the text of Articles 123 and 213 by the Constitution (Forty-fourth Amendment) Act, 1978 (“44th Amendment Act”), observed that the discretion of the President and the Governor, under Articles 213 and 123 respectively, is subject to judicial review and may be set aside in the relevant circumstances. Notably, the 44th Amendment Act eliminated the immunity which had been granted to the validity of the discretion exercised President and the Governor in exercise of their functions under Articles 213 and 123 respectively, under the Constitution (Thirty-eighth Amendment) Act, 1975 (“38th Amendment Act”).
The apex court held that on omission of the relevant text added by the 38th Amendment Act, the position as regards the satisfaction of the respective Executive heads had been resumed to the one which existed prior to the said amendment being brought in force, thereby opening doors to judicial review of their satisfaction.[Para 35-40 of the judgment delivered by J. Chadnrachud]. Reliance was placed upon the observations made by Justice Jeevan Reddy in the case of S.R. Bommai v. Union of India[(1994) 3 SCC 1]. wherein it was held that: “We, however, agree that the deletion of this clause is certainly significant in the sense that the express bar created in the way of judicial review has since been removed consciously and deliberately in exercise of the constituent power of Parliament (See A.K. Roy v. Union of India, (1982) 1 SCC 271). The cloud cast by the clause on the power of judicial review has been lifted.”
(iii) Extent and scope of judicial review of the satisfaction of the President and the Governor:
Here, the apex court rang a customary precaution as regards the extent to which judicial review of the satisfaction of the President and the Governor under Articles 213 and 123 may be conducted. However, the court boldly went on to observe that
“The court will not enquire into the adequacy, or sufficiency of the material before the President or the Governor. The court will not interfere if there is some material which is relevant to his satisfaction. The interference of the court can arise in a case involving a fraud on power or an abuse of power. This essentially involves a situation where the power has been exercised to secure an oblique purpose…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.”[Para 40 of the judgment delivered by J. Chandrachud].
Therefore, satisfaction of the either Executive heads must not be baseless and must be supported with material which could suggest the urgency to resort to their law making powers contained in Articles 123 and 213, respectively.
(iv) Whether the effect of a lapsed ordinance would last or continue to exist:
As can be understood from the text of Articles 123 and 213, an ordinance shall “cease to operate” in two instances: first, on the expiry of a period of six weeks from the reassembly of the legislature; and second, if a resolution disapproving the enactment of an ordinance into an Act is passed by the legislature. However, question of the effect of lapse of an ordinance, owing to differed opinions between the judges of the Krishna Kumar I case, remained undecided. In other words, the present bench was required to decide whether
“legal effects created by the ordinance stand obliterated as a matter of law upon the lapsing of an ordinance or passing of a resolution of disapproval.” To begin analysing the said question, the Supreme Court first resorted to Section 6 of the General Clauses Act which provides for lasting effect of a law repealed by another Act and observed that an Ordinance does not, for precise understanding, get repealed but rather lapses on the happening of either of the two instances provided under Articles 123 and 213 of the Constitution. The difference is well deserved and appreciated, since repealing a legislation results as a consequence of another legislation replacing the repealed Act, which is quite certainly not the case when an ordinance lapses.[Para. 54 of the judgment delivered by J. Chandrachud]
Thereafter, the apex court resorted to clarify the nature that must be imparted to an ordinance in contrast with legislations. Creating a distinction between the two, the court referred to the Constitution Bench case of State of Orissa v. Bhupendra Kumar Bose[(1962) Supp. (2) SCR 380], which was relied upon in a subsequent Constitution Bench case of T. Venkata Reddy v. State of Andhra Pradesh (“Venkata Reddy”)[ (1985) 3 SCC 198.]. The latter case, while finding no difference between an ordinance and a legislation (and thus in the effect arising out of lapse of an ordinance and repeal of an Act) observed as follows:
“An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that the Ordinance-making power is a legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution.”
Therefore, the Venkata Reddy held that the effect of an ordinance remains permanent, as would be the effect of an Act, and in order to restore the position which existed prior to the promulgation of the ordinance, a law must be enacted to that effect.
Rejecting the rationale followed in the aforementioned cases, the Supreme Court observed that ordinances and legislations are incomparable, and hence their effects cannot be compared on the same parameters. It was held that:
“There is a fundamental fallacy in equating an ordinance with a temporary enactment. A temporary Act is a law which is enacted by the legislature – Parliament or the state legislature – in exercise of its plenary powers. While enacting a law, the legislature is entitled to define the period during which the law is intended to operate. The legislature decides whether the law will be for a limited duration or is to be permanent…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 effect of the judgment in T. Venkata Reddy is to place ordinances in a privileged position and to disregard the supremacy of Parliament…If the ordinance lapses, the decision in T. Venkata Reddy would posit that the consequences which have ensued under the ordinance can only be reversed by a retrospective legislation enacted by Parliament which restores status quo ante. In a hierarchical sense, this virtually subordinates the position of legislation in relation to ordinance making powers. The basis and foundation of the two Constitution Bench decisions cannot be accepted as reflecting the true constitutional position.”
Clarifying the meaning and the import of the words “shall have the same force and effect”, as they feature in Articles 123 and 213 of the Constitution, the apex court observed that:
“In referring to an ordinance which is promulgated under Article 213, the Constitution evidently conveys the meaning that in order to have the same force and effect as a legislative enactment, the ordinance must satisfy the requirements of Article 213. Moreover the expression ‘shall have the same force and effect’ is succeeded by the expression ‘but every such ordinance’ shall be subject to what is stated 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.”[Para.58 of the judgment delivered by J. Chandrachud]
Although the observation of the apex court as regards the composite nature of the qualifications under Article 213 remains sound, it would have been appropriate if the court led the analysis down to the conclusion that in no case whatsoever can an ordinance be comparable to a legislative enactment. A requirement for the said clarification arises since the apex court first clinically differentiates between temporary enactments and ordinances, but thereafter lays down a precondition upon the satisfaction of which an ordinance would have the “same force and effect” as that of an Act. The two observations have due potential to be interpreted hypocritically, raising unfulfilled questions as regards the true import of the words “same force and effect”, and requiring answers which fits well with other observations made by the apex court. However, if one places sufficient emphasis on the words “during its tenure” in the aforementioned observations, the said hypocrisy seems to disappear, clarifying that an ordinance would have the “same force and effect” as that of a legislation only during its existence, and not thereafter.
As regards the question of whether a lapsed ordinance would have lasting effects, the Supreme Court observed in negative while holding:
“The issue which needs elaboration is whether an ordinance which by its very nature has a limited life can bring about consequences for the future (in terms of the creation of rights, privileges, liabilities and obligations) which will enure beyond the life of the ordinance. In deciding this issue, the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy.”[Para 67 of the judgment delivered by J. Chadrachud]
Therefore, the apex court observed that the effects of a lapsed ordinance shall not survive, unless restoring status quo ante would be impracticable or impossible. Clarifying the instances which would warrant an exceptional approach, it was held that:
“Must every action under an ordinance produce binding rights, obligations and liabilities which will survive its demise? In our view, in determining the issue the over-arching consideration must be the element of public interest or constitutional necessity…in deciding to mould the relief the effort of the court would be to determine whether undoing what has been done under the ordinance would manifestly be contrary to public interest. Impracticality and irreversibility in that sense are aspects which are subsumed in the considerations which weigh in the balance while deciding where public interest lies. Impracticality cannot by itself be raised to an independent status because it would then be simple enough for the executive to assert the supposed complexities in undoing the effects of an ordinance. Since the basic constitutional value which is at issue is of parliamentary supremacy and control, the moulding of relief can be justified in cases involving grave elements of public interest or constitutional necessity demonstrated by clear and cogent material.”
Therefore, in accordance with the observations of the Supreme Court, only two situations would warrant a deviation from the general rule laid down above: first, if the promulgation of ordinance has an effect which would be practically impossible to reverse, for the nature of change that is brought about; second, if public interest or constitutional necessity demands the effects to remain permanent. While the former seems relatable in tangible forms and results as may ensue, the latter seems to be an exception which would manifest in recognizable forms as and how instances demanding its invocation are adjudicated upon.