Krishna Kumar Singh & Ors. v. State of Bihar & Ors.

The case of Krishna Kumar Singh & Ors. v. State of Bihar & Ors. (2017) is a landmark decision by the Supreme Court of India that clarified the constitutional limits on the power of the President and Governors to promulgate ordinances under Articles 123 and 213 of the Indian Constitution. 

The judgement specifically addressed the issues of re-promulgation of ordinances without legislative approval, the necessity for the executive to place ordinances before the legislature, and the question of whether ordinances can create enduring rights. The case has significant implications for legislative power and executive accountability in India’s constitutional framework.

This case arose from the repeated re-promulgation of ordinances by the Governor of Bihar between 1967 and 1981. It raises essential constitutional issues, especially in relation to executive overreach and the legislative process. The case was referred to a seven-judge Constitution Bench, which delivered its judgement on 2 January 2017.

Facts of Krishna Kumar Singh & Ors. v. State of Bihar & Ors.

Between 1967 and 1981, the Governor of Bihar issued and re-issued 256 ordinances, some of which remained in force for over fourteen years. This practice was not only unconstitutional but also violated the doctrine of legislative supremacy, as established by the Constitution. 

The practice of re-promulgating ordinances without placing them before the legislature was directly challenged in the case of D.C. Wadhwa v. State of Bihar (1986), where the Supreme Court held that the continuous re-promulgation of ordinances amounted to an unconstitutional usurpation of legislative functions.

In 1989, the Governor of Bihar promulgated an ordinance that transferred the administration of 429 Sanskrit schools to the state government. This ordinance and its successive re-promulgations were never presented before the Bihar Legislature, and no legislation was passed in accordance with the provisions of the ordinance. The ordinance eventually lapsed without legislative approval.

The employees of the Sanskrit schools, who were transferred to government service under the ordinance, filed a writ petition before the Patna High Court, seeking payment of salaries and confirmation of their government employee status. The Patna High Court upheld the employees’ claims for salaries but struck down the re-promulgation of the ordinances.

An appeal was filed before the Supreme Court, which, in Krishna Kumar Singh & Ors. v. State of Bihar & Ors. (1998), decided that all ordinances issued after the first were invalid due to the non-compliance with the constitutional requirements. However, there was a difference of opinion between the two judges regarding the constitutional validity of the first ordinance. This led to the matter being referred to a larger bench, eventually culminating in the seven-judge bench decision in 2017.

Issues in the Case

The Supreme Court, in Krishna Kumar Singh & Ors. v. State of Bihar & Ors., framed several critical constitutional issues:

1. Mandatory Legislative Scrutiny: Whether the obligation to place an ordinance before the legislature in terms of Articles 123 and 213 is mandatory, and whether the non-placement of ordinances before the legislature constitutes a fraud on the Constitution.
   
2. Cessation of Ordinances: Whether upon the expiry or disapproval of an ordinance, all consequences arising from it would stand nullified, including any rights created under it.
   
3. Enduring Rights: Whether ordinances can create enduring rights for individuals that survive the cessation of the ordinance.
   
4. Re-promulgation of Ordinances: Whether the re-promulgation of ordinances by the executive, without placing them before the legislature, constitutes a fraud on the Constitution and a subversion of the democratic legislative processes.

Laws Involved

The case primarily involved the interpretation of the following constitutional provisions:

• Article 123 of the Constitution of India: Provides the President with the power to promulgate ordinances when both Houses of Parliament are not in session. The power is conditional and requires the President to be satisfied that circumstances exist which render it necessary to take immediate action.
  
• Article 213 of the Constitution of India: Grants the Governor the power to promulgate ordinances during the recess of the State Legislature, under similar conditions as the President’s power.
  
• Article 174 of the Constitution of India: Specifies that the State Legislature must be convened at least once every six months, thus indirectly limiting the life of ordinances.

Judgement of the Court in Krishna Kumar Singh & Ors. v. State of Bihar & Ors.

In Krishna Kumar Singh & Ors. v. State of Bihar & Ors. (2017), the Supreme Court delivered a comprehensive judgement with several key findings:

Mandatory Requirement to Place Ordinances Before the Legislature

The Court ruled that the requirement to place ordinances before the legislature is mandatory. The words “shall be laid” in Articles 123 and 213 are a positive mandate with no exceptions. 

Failure to comply with this requirement is considered a fraud on the Constitution and an abuse of the executive’s ordinance-making power. The Court emphasised that the legislature has the constitutional right and duty to scrutinise ordinances and decide their validity and necessity.

Cessation of Ordinances

The Court held that an ordinance ceases to operate six weeks after the legislature has re-assembled, or earlier if the legislature passes a resolution disapproving the ordinance. 

When an ordinance ceases to operate, its effects are no longer valid, although actions taken under the ordinance while it was in effect are not automatically rendered void. The Court noted that an ordinance does not have the permanence of an Act passed by the legislature.

Re-promulgation of Ordinances

The Court made it clear that re-promulgation of ordinances is a fraud on the Constitution. The repeated re-issuance of ordinances without legislative approval was held to be unconstitutional and a direct attempt to bypass the legislative process. 

The Court noted that the executive cannot assume the role of the legislature and make laws for an extended period without parliamentary oversight. The judgement in D.C. Wadhwa v. State of Bihar (1986) was reaffirmed, condemning the abuse of the ordinance-making power.

Ordinances and Enduring Rights

The Court ruled that ordinances cannot create enduring rights. Unlike temporary laws passed by the legislature, which may include provisions for saving rights and privileges, ordinances cannot confer lasting rights upon individuals. 

The Court distinguished between temporary enactments and ordinances, noting that once an ordinance expires or is disapproved, any rights created under it must be evaluated in accordance with constitutional principles and public interest.

Judicial Review of Executive Satisfaction

The Court clarified that the satisfaction of the President or Governor in promulgating an ordinance is subject to judicial review. While the Court will not assess the adequacy of the material on which the executive’s satisfaction is based, it will review whether the satisfaction is based on relevant material or is a fraud on power.

Conclusion

In Krishna Kumar Singh & Ors. v. State of Bihar & Ors. (2017), the Supreme Court delivered a definitive judgement on the executive’s power to issue ordinances. The case reaffirmed the constitutional principle of legislative supremacy and the necessity for democratic accountability in law-making. 

By prohibiting the re-promulgation of ordinances and requiring that they be laid before the legislature, the Court reinforced the need for parliamentary scrutiny of executive actions.