Not Placing An Ordinance In The Legislature Is Fraudulent, Says SC Constitution Bench

The Supreme Court today reserved its judgment in the case of Krishna Kumar Singh v State of Bihar, after grilling the counsel on both the sides on the propriety of promulgating an ordinance, and not placing it in the legislature to seek its approval, within the prescribed period.

Under Article 123(2)(a), an ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.

Article 213(2) (a) has a similar provision with regard to the validity of ordinances promulgated by the Governor of a State, during the recess of state legislature.

Senior advocate, Salman Khurshid, appearing for one of the petitioners, argued that the focus in the case is on repromulgation of ordinances, and therefore, the question whether a Government can avoid placing an ordinance in a legislature, to seek its approval to it, after promulgation, is a minor issue. This prompted the Chief Justice T.S.Thakur to remark that power can’t be exercised without concomitant obligation.

Khurshid then asked the bench to lay down grounds which would ensure that certain effects of an ordinances would endure, even after its expiry. Khurshid suggested that whatever the ruling of the bench in this case, it should apply prospectively, so that the petitioners’ prayer is granted.

READ: SC set to decide whether the benefits conferred by an Ordinance can outlive it

When Justice Chandrachud pointed out that the Constitution mandates that the Government should place the Ordinance in the House, senior advocate, Amarendra Sharan, also appearing for a petitioner, suggested that every Ordinance should be treated as a separate ordinance, even if there is a series of repromulgated Ordinances. Therefore, the question of the first Ordinance losing its validity because of the Government’s failure to place it in the legislature, and thereby making the subsequent repromulgated ones vulnerable, does not arise, he contended.

Earlier, the Solicitor General, Ranjit Kumar, suggested that whether the effects of an Ordinance would endure after its expiry would differ from case to case. He showed his agreement with Justice Sujata Manohar who said in her 1998 judgment that the 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 validated should not again become invalid.

The Solicitor General’s view came as a disappointment to many petitioners, who are retired Sanskrit teachers, and who were present in the Court today.

The Bihar Government, through an Ordinance, had granted them the status of government employees, and allowed the Ordinance to lapse subsequently, after repromulgating it a few times. The principle of reversibility would mean that their status as government employees could be reversed, by virtue of the expiry of the Ordinance.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.