Holding

All the ordinances, from Ordinance 32 of 1989 to Ordinance 2 of 1992, are void as a fraud on constitutional power and cannot create any enduring rights; salaries already paid cannot be recovered.

Summary

The Supreme Court examined a series of seven ordinances issued by the Governor of Bihar between 1989 and 1992 to take over non‑government Sanskrit schools. None of the ordinances were laid before the state legislature as required by Article 213(2) and they were repeatedly re‑promulgated, violating the precedent set in D.C. Wadhwa. The Court held that the entire chain of ordinances constituted a fraud on constitutional power, rendering them void and incapable of creating any enduring rights or employee status. Consequently, the salaries paid to teachers under the ordinances could not be recovered, but no further relief was granted. The judgment also overruled the earlier doctrine of "enduring rights" for ordinances and affirmed that the requirement to lay an ordinance before the legislature is a mandatory constitutional obligation.

Issues considered

The validity of repeated re‑promulgation of ordinances without laying them before the legislature under Article 213(2).
Whether an ordinance that ceases to operate can create enduring rights, privileges, obligations or liabilities.
The mandatory nature of the requirement to lay an ordinance before the state legislature.
Whether salaries paid under the invalid ordinances can be recovered from the employees.
The status of the first three ordinances that were not challenged and whether they remain valid.
The scope of judicial review of the Governor's satisfaction under Article 213.

Legislation cited

Constitution of Indias. Art.123, s. Art.213, s. Art.44, s. Art.45, s. Art.46, s. Art.47, s. Art.48, s. Art.49, s. Art.50, s. Art.51, s. Art.52, s. Art.53, s. Art.54, s. Art.55, s. Art.56, s. Art.57, s. Art.58, s. Art.59, s. Art.60, s. Art.61, s. Art.62, s. Art.63, s. Art.64, s. Art.65, s. Art.66, s. Art.67, s. Art.68, s. Art.69, s. Art.70, s. Art.71, s. Art.72, s. Art.73, s. Art.74, s. Art.75, s. Art.76, s. Art.77, s. Art.78, s. Art.79, s. Art.80, s. Art.81, s. Art.82, s. Art.83
General Clauses Act, 1897s. Section 6
Government of India Act, 1935s. Section 42, s. Section 43, s. Section 44, s. Section 88, s. Section 90

Subjects

OrdinanceRe‑promulgationArticle 213Legislative supremacyConstitutional fraudEnduring rightsSalary recoveryJudicial reviewGovernor's satisfactionPublic interest

Judgment

[2017] 5 S.C.R. 160

A KRISHNA KUMAR SINGH & ANR
v.
STATE OF BIHAR & ORS.
(Civil Appeal No. 5875of1994)
B JANUARY 01, 2017
[T. S.THAKUR, CJI, MADAN B. LOKUR, S. A. BOBDE,
ADARSH KUMAR GOEL, UDAY UMESH LALIT,
DR. D. Y. CHANDRACHUD AND
L. NAGESWARA RAO, JJ.)
c Constitution of India:
Art.2 I 3 - Promulgation of Ordinances one after another in
succession but none of them laid before the legislature - In the
instant case, Governor of Bihar promulgated an Ordinance
D providing for taking over of 429 Sanskrit schools in the State - The
services of teachers and other employees of the school were to stand
transferred to the state government subject to certain conditions -
The first Ordinance was followed by a succession of Ordinances -
None of the Ordinances, which were issued in exercise of the power
·of the Governor under Art.213 were placed before the state
E legislature as mandated - Validi(v of the Ordinances - Held: Every
ordinance at issue 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 Supreme Court in D C Wadhwa were bereft of any legal
effect and consequences - The ordinances did not create any rights
F
or confer the status of government employees on the teachers and
other employees of the schools - However, as regard the salaries
paid during .the tenure of the ordinances pursuant to the directions
made in the judgment of the High Court, no recoveries to be made
from any of the employees - Ordinance Raj-Bihar Non-Government
G Sanskrit Schools (Taking Over of Management and Control)
Ordinance, 1989 - Service law. (Per majority)
Art.213 - Promulgation of Ordinances during recess of
legislature - Requirement under - Held: The authority which is
conferred upon the Governor to promulgate Ordinances is
H
160
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 161

conditioned by two requirements - The first is that an Ordinance A
can be promulgated only when the state legislature is not in session
- The second requirement is that the Governor. before issuing an
Ordinance has to be satisfied of the existence of circumstances
rendering it necessary to take immediate action - The Governor is
required to form a satisfaction of the existence of circumstances 'i3
which makes it necessary to take immediate action - Necessity is
distinguished from a mere desirability - The expression "necessity,.
coupled with "immediate action" conveys the sense that it is
imperative due to an emergent situation to promulgate an Ordinance
during the period when the legislature is not in session - Both these
requirements indicate a constitutional intent to confine the power C
of the Governor to frame Ordinances within clearly mandated limits.
(Per majority)
Art.213(1) - Circumstances in which the Governor cannot
promulgate an Ordinance without the instructions of the President
- The three situations where the instructions of the President are D
required are: Where a Bill containing the same provisions requires
the previous sanction of the President, for its introduction into the
legislature; where a Bill containing the same provisions would be
deemed necessary by the Governor for being reserved for
consideration of the President; and where a law enacted by the
state legislature containing the same provisions would require the E
assent of the President, failing which it would be invalid. (Per
majority)
Art.213 - Requirement of laying an Ordinance before the state
legislature is mandatory- The expression "shall be laid" is a positive
mandate which brooks no exceptions - That the word 'shall' in F
sub-clause (a) of clause 2 of Art. 213 is mandatory, emerges from
reading the provision in its entirety. (Per majority)
Art.213 - Tenure of an Ordinance - Though the Constitution
contemplates that an Ordinance shall have the same force and effect
qs a law enacted by the state legislature, this is subject to the G
Ordinance being laid before the state legislature and coming to an
end in the manner stipulated in sub-clauses (a) and (b) - It is brought
to an end : By the Ordinance ceasing to operate upon the expiry of
a period of six weeks of the reassembly of the legislature; or if the
Ordinance is disapproved by a resolution of the state legislature in H
162 SUPREME COURT REPORTS [2017] 5 S.C.R.

A which event it ceases to operate on the resolution disapproving it
being passed; or in the event of the Ordinance being withdrawn by
the Governor. (Per majority)
Art.163 - Governor acts on aid and advice of Council of
Ministers - Governor while promulgating an Ordinance does not
B constitute an independent legislature, but acts on the aid and advice
of the Council of Ministers under Art.163- The Council of Ministers
is collectively responsible to the elected legislative body to whom
the government is accountable. (Per majority)
Arts.123, 213 - Ordinance making power - Constitutional
c control of Parliament and the state legislatures over the Ordinance
making power of the President (under Art.123) and the Governors
(under Art.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
D 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
E and as an incident of those powers, the express constitutional
authority to disapprove an Ordinance - If an Ordinance has to
continue beyond the tenure which is prescribed by Art.213(2)(a), a
law has to be enacted by the legislature incorporating its provisions
- Our Constitution does not provide that an Ordinance shall assume
the character of a law enacted by the state legislature merely upon
F the passing of a resolution approving it. (Per majority)

Arts.123, 213 - Significance of placing tabling the Ordinance
- Held: The placement of an Ordinance before the legislature is a
constitutional necessizv; the under~ving object and rationale being
to enable the legislature to determine (i) the need for and expediency
G of an ordinance; (ii) whether a law should be enacted: or (iii)
whether the Ordinance should be disapproved. (Per majority)
Art.213 - Failure to lay an Ordinance before the legislature
- Impact of - Held: The failure to lay an Ordinance before the state
legislature constitutes a serious infraction of the constitutional
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 163

obligation imposed by Art.213(2) - Requirement of laying an A
Ordinance before the state legislature is a mandatory obligation
. and is not merely of a directory nature. (Per majority)
Art.213 - Failure to lay an ordinance before the legislature
amounts to an abuse of the constitutional process and is a serious
dereliction of the constitutional obligation - Jn the case of delegated B
legislation, Parliamentary or state enactments may provide a
requirement of laying subordinate legislation before the legislature
- It is well-settled that a requirement of merely laying subordinate
legislation before the House of the legislature is directory _: But
where a disapproval of subordinate legislation is contemplated, such
a requirement is mandatory. (Per majority) c
Arts.123, 213 - Presidential/Governor satisfaction - Scope
of - Held: The constitutional power which has been conferred upon
the President under Art. 123 and upon the Governors under Art.213
to promulgate ordinances is conditional - Apart from the condition
that the power can be exercised only when the legislature is not in D
session, the power is subject to the satisfaction of the President
(under Art.123) or the Governor (under Art.213) "'that circumstances
exist which render it necessary for him to take immediate action. "
(Per majority)
Arts.123, 213 - Presidential/Governor satisfaction - Judicial E
review, scope - The satisfaction of the President under Art.123(1)
or of the Governor under Art.213(1) is not immune from judicial
review - The power of promulgating ordinances is not an absolute
entrustment but conditional upon a satisfaction that circumstances
exist rendering it necessary to take immediate action - Since the F
duty to arrive at the satisfaction rests in the President and the
Governors (though it is exercisable on the aid and advice of the
Council of Ministers), the Court must act with circumspection when
the satisfaction under Art.123 or Art.213 is challenged - The court
will not enquire into the adequacy, or sufficiency of the material
before the President or the Governor - The court will not interfere G
if tbere 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 exercising the power ofjudicial review, the court must be mindful H
164 SUPREME COURT REPORTS [2017] 5 S.C.R.

A both of its inherent limitations as well as of the entrustment of the
power to the head of the executive who acts on the aid and advice
of the Council of Ministers owing collective responsibility to the
elected legislature - In other words, it is on(v 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
B
may be warranted in a rare case - However, absolute immunity
from judicial review cannot be supported as a matter offirst principle
or on the basis of constitutional history. (Per majority)
Arts.I23, 213 - Re-promulgation of an Ordinance -
Constitutionality of - Held: Re-promulgation of ordinances is
c constitutionally impermissible since it represents an effort to
overreach the legislative body which is a primary source of law
making authority in a parliamentary democracy - Re-promulgation
defeats the constitutional scheme under which a limited power to
frame ordinances has been conferred upon the President and the
D Governors - The danger of re-promulgation lies in the threat which
it poses to the sovereignty of Parliament and the state legislatures
which have been constituted as primary law givers under the
Constitution - Open legislative debate and discussion provides
sunshine which separates secrecy of ordinance making from
transparent and accountable governance through law making.(Per
E majority)

Art.213(2)(a) and (b) - Expression "cease to operate" in
Art.2I 3(2)(a) - When attracted - Held: Is attracted in two situations
- The first is where a period of six weeks has expired since the
reassembling of the legislature - The second situation is where a
F resolution has been passed by the legislature disapproving of an
ordinance - Apart from these two situations that are contemplated
by sub-clause (a), sub-clause (b) contemplates that an ordinance
may be withdrawn at any time by the Governor - Upon its withdrawal
the ordinance would cease to operate as well. (Per majority)
G Art.213 - Consequence of an ordinance terminating on the
expiry of a period of six weeks or, within that period, on a
disapproval by the legislature - Held: The constitutional provision
states that,.in both situations the ordinance ceases to operate - Where
an ordinance has ceased to operate, would it result ipso Jure in a
H revival of the state of affairs which existed before the ordinance
! ' •

KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 165
. ·'

was promulgated - There are two constructions which need to be A
analysed - At one end of the spectrum is the view that once the
legislature has expressed its disapproval by a resolution, the state
of affairs which the ordinance brought about stands dissolved and
that which existed on the eve of the ordinance stands revived - Jn
this view, disapproval amounts to an obliteration of the effect of all B
that had transpired in the meantime -At the other end ofthe spectrum
is the view that an ordinance upon being promulgated has the force
and effect of a law enacted by the legislature - Hence, the lapsing
of its term (on the expiry of six weeks or the passing of a resolution
of disapproval)means that the ordinance ceases to operate from
that date - Until the ordinance ceases to operate, it continues to C
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 D
revive the state of affairs as it existed prior to the promulgation of
the ordinance. (Per majority)
Ordinance and temporary enactment - Distinction between -
ls Ordinance a temporary enactment - Held: 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. E
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 F
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 ior 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 G
competent legislature which has plenary powers to enact a law
cannot be equated with a temporary enactment. (Per majority)
. Art.213 - Cease to operate - Connotation of in the context 'of
Art.213 - Held: The Constitution has in its provisions used different
H
166 SUPREME COURT REPORTS [2017] 5 S.C.R.

A phrases including "repeal", "void", ··cease to have effect" and
"cease to operate" - 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
B particular significance because clause 3 of Art.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 assented to by the Governor - Such a provision
contained in an ordinance is declared to be void by clause 3 of
Art.213 - Evidently, when the framers wished to indicate that a
C provision of an ordinance would be void in a certain eventuality,
the Constitution has expressly used that phrase - This would militate
against equating the expression "cease to operate" with the
expression "void" - Both have distinct connotations - Particularly,
where the same constitutional article has used both phrases - 'cease
to operate' (in clause 2) and 'void' in (clause 3) one cannot be read
D
to have the same meaning as the other. (Per majority)
Art.213 - Expression "cease to operate"- Connotation of -
Held: The expression "cease to operate" in Art.213(2)(a) applies
both to an ordinance whose tenure expires after the prescribed
period as well as in relation to an ordinance which is disapproved
E by the legislature - The content of the expression cannot hence
mean two separate things in relation to the two situations. (Per
majority)
Power to frame ordinances - Enduring rights theory -
Applicability of - Held: The theory which was accepted in the
F judgment in Bhupendra Kumar Bose cannot be applied to the power
to frame ordinances - Acceptance of the doctrine of enduring rights
in the context of an ordinance would lead to a situation where the
exercise of power by the Governor would survive in terms of the
creation of rights and privileges, obligations and liabilities on the
G hypothesis that these are of an enduring character - The enduring
rights theory attributes a degree of permanence to the power to
promulgate ordinances in derogation of parliamentary control and
supremacy - .Doctrines/Principles. (Per majority)
Law making power - Ordinance and subordinate legislation
H - Requirement of an ordinance being laid before the legislature
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 167

cannot be equated with the laying of subordinate legislation - Held: A
An ordinance is made in the exercise of the legislative power of the
Governor which is subordinate to and not a stream which runs
parallel to the power of law making which vests in the state
legislatures and Parliament - Any breach of the constitutional
requirement of laying an ordinance before the legislature has to be
B
looked upon with grave constitutional disfavour - The Constitution
uses the express "cease to operate" in the context of a culmination
of a duration of six weeks of the reassembling of the legislature or
as a result of a resolution of disapproval - The framers introduced
a mandatory requirement of an ordinance being laid before the
legislature upon which it would have the same force and effect as a c
law enacted by the legislature, subject the condition that it would
cease to operate upon the expiry of a period of six weeks of the
reassembling of the legislature or earlier, if a resolution of
disapproval were to be passed. (Per majority)
Rights, privileges, obligations and liabilities arisen under an D
ordinance - Effect on, when ordinance ceased to operate - Held:
In determining the issue, the over arching consideration must be
the element ofpublic 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 E
irreversibility in that sense are aspects which are subsumed in the
considerations which weigh in the balance while deciding where
public interest lies - The appropriate test to be applied is the test of
public interest and constitutional necessi(v - This would include
the issue as to whether the consequences which have taken place F
under the Ordinance have assumed an irreversible character - In a
suitable case, it would be open to the court to mould the relief (Per
majority)
Scope of the Ordinance making power - Historical evolution
- England, British India and Constituent Assembly - Discussed. G
(Per majority)
Art.213(2) - It is not mandatory under Art.213(2) to lay an
Ordinance before the Legislative Assembly of the State Legislature,
nor would the failure to do so result in the Ordinance not having
the force and effect as an enacted law or being of no conseqlience H
168 SUPREME COURT REPORTS [2017] 5 S.C.R.

A whatsoever - When an Ordinance is promulgated it is printed in the
Official Gazette and therefore every legislator is aware of its
promulgation - Consequently, even if the Executive does not lay
the Ordinance before the State Legislature or if tlie Secretary of the
Legislative Assembly does not supply a printed copy of the
B Ordinance, a Member of the Legislative Assembly is not helpless -
His right to move a Resolution for disapproving the Ordinance
cannot be taken away by this subterji1ge - 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 away by the Executive by simply not laying
C the Ordinance before the Legislative Assembly - Therefore, even
without making the laying of an Ordinance before the State
Legislature mandatory, the Constitution does provide adequate
checks and balances against a possible misuse of power by the
Executive. (Dissenting view) (Per Madan B.Lokur, J.)
D Art.213 - 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
E
immediate action" for promulgating or re-promulgating an
Ordinance. (Dissenting view) (Per Madan B.Lokur, J.)
Art.213 - 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
F though first 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, first three Ordinances do not
confer any enduring or irreversible right or benefits on the
G employees - The promulgation of the fourth and subsequent
Ordinances were not adequately justified by the State of Bihar in
spite of a specific challenge by the employees and therefore they
were rightly stntck down by the High Court. (Dissenting view) (Per
Madan B.Lokur, J.)

H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 169

Art.213(2}(a) - Approval of an Ordinance is not postulated A
by Art.213(2}(a) of the Constitution. (Dissenting view) (Per Madan
B.Lokur, J.)
Art.213 - Historical background relating to Ordinances -
Discussed - Government of India, 1935 - ss.88, 90. (Per Madan
B.Lokur, J.) B
Ordinance - The nature of power invoked for issuing
ordinances does not admit of creation of enduring rights in favour
of those affected by such ordinances - The ordinances issued in
the instant case could not have created any enduring rights in favour
of Sanskrit school teachers particularly when the ordinances c
themselves were a fraud on the Constitution. (Per T. S. Thakur, CJ/)
Art.213 - Repromulgation of ordinances, validity of - None
of them ever placed before the State legislature as required under
Art. 213 (2) - Held: Since the process of issuing the ordinances
and repromulgation thereof was in the nature of a single transaction D
and a part of a single series on the same subject the vice of invalidity.
attached to any such exercise of power would not spare the first,
second and the third ordinances which would like the subsequent
ordinances be unconstitutional on the same principle - These
ordinances provided the foundation for the edifice of the subsequent
repromulgations - If the edifice was affected, there is no way the E
foundation could remain unaffected by the vice of
unconstitutionality. (Per T. S. Thakur, CJ/)
General Clauses Act: s.6 - Repeal - Scope of - Held: s.6 in
. its terms applies only to a repeal - An ordinance ceases to have
effect six weeks from the date on which the legislature reassembles F
(or upon the passing of a legislative resolution disapproving 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 G
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 - s. 6 of the General Clauses Act protects rights, privileges

H
>
170 SUPREME COURT REPORTS [2017) 5 S.C.R.

A 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 s.6 of the General
Clauses Act. (Per majority)
B Words and phrases:
Expression ''repeal", "void", 'cease to have effect", "cease
to operate" - Distinction between. (Per majoriM
Expression "cease to operate" - Meaning of (Per majority)
C Expression "disapproval"- Meaning of (Per majority)
Answering the reference, the Court
HELD: Per Dr. D. Y. Chandrachud. J.: (for himself,
S. A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit and
L. Nageswara Rao, JJ.)
D
The power which has been conferred upon the President
under Article 123 and the Governor under Article 213 is
legislative in character. The power is conditional in nature: it can
be exercised only when the legislature is not in session and
subject to the satisfaction of the President or, as the case may
E be, of the Governor that circumstances exist which render it
necessary to take immediate action. An Ordinance which is
promulgated under Article 123 or Article 213 has the same force
and effect as a law enacted by the legislature but it must (i) be
laid before the legislature; and (ii) it will cease to operate six
weeks after the legislature has reassembled or, even earlier if a
F
resolution disapproving it is passed. Moreover, an Ordinance
may also be withdrawn. 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
G and 213. The Ordinance making power does not constitute the
President or the Governor into a parallel source of law making
or an independent legislative authority; 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
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 171

Council of Ministers which owes collective responsibility to the A
legislature. 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, validity of and expediency to
B
promulgate an ordinance; (b) Whether 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). 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. c
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. Article
213(2)(a) provides that an ordinance promulgated under that
article shall "cease to operate" six weeks after the reassembling D
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 E
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 the reassembling of the legislature or upon a resolution
of disapproval being passed, the ordinance is rendered void ab
initio. Both Articles 123 and 213 contain a distinct provision
F
setting out the circumstances in which an ordinance shall be void.
An ordinance is void in a situation where it makes a provision
which Parliament would not be competent to enact (Article 123(3))
or which makes a provision which would not be a valid if enacted
in an act of the legislature of the state assented to by the Governor
(Article 213(3)). The framers having used the expressions "cease G
to operate" and "void" separately in the same provision, they
cannot convey the same meaning; The theory of enduring rights
which has been laid down in the judgment in Bhupendra Kumar
Bose and followed in T Venkata Reddy by the Constitution Bench
is based on the analogy of a temporary enactment. There is a
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172 SUPREME COURT REPORTS [2017] 5 S.C.R.

A basic difference between an ordinance and a temporary enactment.
These decisions of the Constitution Bench which have accepted
the notion of enduring rights which will survive an ordinance which
has ceased to operate do not lay down the correct position. The
judgments are also no longer good law in view of the decision in
S R Bommai; No express provision has been made in Article
B
123 and Article 213 for saving of rights, privileges, obligations
and liabilities which have arisen under an ordinance which has
ceased to operate. Such provisions are however specifically
contained in other articles of the Constitution such as Articles
249(3), 250(2), 357(2), 358 and 359(1A). This is, however, not
C . 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; 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
D
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 The satisfaction of the President under
E 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
F
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. Every one of the ordinances at issue constituted
G 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 DC Wadhwa
are bereft of any legal effects and consequences. The ordinances
do not create any rights or confer the status of government
employees. However, no recoveries shall be made from any of
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 173

the employees of the salaries which have been paid during the A
tenure of the ordinances in pursuance of the directions contained
in the judgment of the High Court. [Paras 80, 81] [248-B-H;
249-A-H; 250-A-G]
DC Wadhwa v. State of Bihar (1987) 1 SCC 378:(1987)
1 SCR 798; SR Bommai v. Union of India (1994) 3 B
SCC 1: [1994] 2 SCR 644; Quarry Owners' Association
v. State of Bihar (2000) 8 SCC 655:(2000] 2 Suppl.
SCR 211 - relied on.
T Venkata Reddy v. State of Andhra Pradesh (1985) 3
SCC 198 : [1985] 3 SCR 509; State of Orissa v. c
Bhupendra Kumar Bose (1962] Suppl. (2) SCR 380 -
disapproved.
Krishna Kumar Singh v. State of Bihar (1998) 5 SCC
643 : (1998] 3 SCR 206; R.K. Garg v. Union of India
(1981) 4 sec 675: [1982] 1 SCR 947; A. K Roy v. D
Union of India (1982) 1 SCC 271: [1982] 2 SCR 272;
R C Cooper v. Union of India (1970) 1. SCC 248: [1970)
3 SCR 530; A K Roy v. Union of India (1982) 1 SCC
271 : [1982] 2 SCR 272; Madhav Rao v. Union of India
[1971] 3 SCR 9; State of Rajasthan v. Union of India
[1978] 1 SCR 1; Indra Sawhney v. Union of India E
(1992) Supp. (3) SCC 217: [1992) 2 Suppl. SCR 454;
Mahanat Narayan Dessjivaru v. State of Andhra AIR
(1959) AP 471; State of Punjab v. Mohar Singh AIR
(1955) SC 84: [1955] SCR 893; State of Rajasthan v.
Union of India (1977) 3 SCC 592:(1978] 1 SCR 1; F
Keshavan Madhava Menon v. State of Bombay [1951)
SCR 228 - referred to.
The Case of Proclamations (1611) 12 Co Rep 74;
Pankina v. Secretmy of State for the Home Department
[2010] 3 WLR 1526; Wicks v. Director of Public G
Prosecutions (1947) A.C. 362; Warren v. Windle (1803)
3 East 205, 211-212 : 102 E.R. (K.B.) 578; Steavenson
v. Oliver 151 E.R. 1024, 1026-1027 - referred to.
P Ramanatha Aiyar, the Major Law Lexicon (IV Edn.
Pg 1053; Justice C K Thakker's Encyclopaedic Law
H
174 SUPREME COURT REPORTS (2017) 5 S.C.R.

A Lexicon Ashoka Law House Pg.879; Black's Law
Dictionary Xth Edn. Pg.268; Parliamentary Procedure
- the law, privileges and precedents by Subhash C
Kashyap - referred to.
Per Madan B.Lokur, J. (Partly dissenting)
B I. It is not mandatory under Article 213(2) of the
Constitution to lay an Ordinance before the Legislative Assembly
of the State Legislature, nor would the failure to do so result in
the Ordinance not having the force and effect as an enacted law
or being of no consequence whatsoever. Further, an Ordinance
c cannot create an enduring or irreversible right in a citizen. [Paras
1, 2) [251-C-D]
State of Orissa v. Bhupendra Kumar Bose (1962) Suppl.
(2) SCR 380; T Venkata Reddy v. State of Andhra
Pradesh (1985) 3 SCC 198: (1985) 3 SCR 509 -
D overruled.
2. As far as the re-promulgation of an Ordinance is
concerned, the re-promulgation of an Ordinance by the Governor
of a State is not per sea fraud on the Constitution. There could be
exigencies requiring the re-promulgation of an Ordinance.
E 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. [Para 3) (251-E, F)
3. Finally, in the absence of any challenge by the employees
F
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
G under these three Ordinances arc justified. However, these three
Ordinances do not confer any enduring or irreversible right or
benefits on the employees. The promulgation of the fourth and
subsequent Ordinances has not been adequately justified by the
State of Bihar in spite of a specific challenge by the employees
and therefore they were rightly struck down by the High Court.
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 175

(Para 4) [252-A, BJ A
4. Promulgation of an Ordinance: Article 213 of the
Constitution provides that when the Governor of the State 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." B
However, this is subject to the exception that the Governor cannot
promulgate an Ordinance when both Houses of the Legislature
are in session. An Ordinance is promulgated by the Governor of
a State on the aid and advice of his Council of Ministers and is in
exercise of his legislative power. Article 213 of the Constitution
does not require the Legislature to approve an Ordinance - Article c
213(2) of the Constitution refers only to a Resolution disapproving
an Ordinance. If an Ordinance is disapproved by a Resolution of
the State Legislature, it ceases to operate as provided in Article
213(2)(a) of the Constitution. If an Ordinance is not disapproved,
it docs not lead to any conclusion that it has been approved - it D
only means that the Ordinance has not been disapproved by the
State Legislature, nothing more and nothing less. The concept
of disapproval of an Ordinance by a Resolution as mentioned in
Article 213(2)(a) of the Constitution may be contrasted with
Article 352(4) of the Constitution where a positive act of approval
of a Proclamation issued under Article 352(1) of the Constitution E
is necessary. Similarly, a positive act of approval of a Proclamation
issued under Article 356(1) of the Constitution is necessary under
Article 356(3) of the Constitution. A Proclamation issued under
Article 360 of the Constitution also requires approval under
Article 360(2) of the Constitution. There is therefore a conscious F
distinction made in the Constitution between disapproval of an
Ordinance and approval of a Proclamation and this distinction
cannot be glossed over. It is for this reason that only disapproval
of an Ordinance is postulated by Article 213(2)(a) of the
Constitution and approval of an Ordinance is not postulated by
Article 213(2)(a) of the Constitution. The expression of G
disapproval of an Ordinance could be at the instance of any one
Member of the Legislative Assembly in view of Ruic 140 of the
Rules of Procedure and Conduct of Business in the Bihar Vidhan
Sabha. If the State Legislature disapproves an Ordinance by a
H
176 SUPREME COURT REPORTS . (2017] 5 S.C.R.

A Resolution, it ceases to operate. [Paras 8-111 [253-C, F-H; 254-
A-C]
5. After the promulgation of an Ordinance
5.1. After the promulgation of an Ordinance by the
Governor of a State at the instance of the Executive, the
B Constitution visualizes three possible scenarios. Firstly, despite
t«e 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. Secondly, the
Executive may, in view of the provisions of Article 213(2)(b) of
c 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. Thirdly, the Executive may,
in accordance with Article 213(2)(a) of the Constitution lay an
Ordinance before the Legislative Assembly of the State
Legislature. [para 12) [254-D-G; 255-A]
D
5.1.1. First scenario: Article 213(2)(a) of the Constitution
provides that an Ordinance ceases to operate at the expiration
of six weeks of reassembly of the State Legislature or if before
the expiration of that period a Resolution disapproving it is passed
by the State Legislature. An Ordinance ceasing to operate at the
E expiration of six weeks of reassembly of the State Legislature is
not related or referable to laying the Ordinance before the State
Legislature. Therefore, whether an Ordinance is laid before the
State Legislature or not, the provisions of Article 213(2)(a) of
the Constitution kick in and the Ordinance will cease to operate
F at the expiration of six weeks of reassembly of the State
Legislature. On a textual interpretation of Article 213(2)(a) of
the Constitution, not laying an Ordinance before the Legislative
Assembly has only one consequence, which is that the Ordinance
will cease to operate at the expiration of six weeks of reassembly
of the State Legislature. [para 14] [255-B-F]
G
5.1.2. If an Ordinance is not laid before the State
Legislature it docs not become invalid or void. 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
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 177

the Constitution. Article 213(2) of the Constitution is, in a sense, A
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 to read the first part as B
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. [Paras
15, 16) (255-G; 256-A-D]
5.1.3. Article 213(3) of the Constitution provides for the c
only contingency when an Ordinance is void. This provision does
not suggest that an Ordinance would be void if it is not placed
before the State Legislature. The framers of our Constitution
were quite conscious of and recognized the distinction between
an Ordinance that is void (under Article 213(3) of the D
Constitution) and an Ordinance that ceases to operate (under
Article 213(2) of the Constitution). If an Ordinance is void, then
any action taken under a void Ordinance would also be void. But
if an Ordinance ceases to operate, any action taken under the
Ordinance would be valid during the currency of the Ordinance
since it has the force and effect of a law. Clearly, therefore, the E
distinction between Clause (2) and Clause (3) of Article 213 of
the Constitution is real and recognizable as also the distinction
between an Ordinance that is void and an Ordinance that ceases
to operate. On a reading of Article 213(2) of the Constitution,
therefore, it is not mandatory that an Ordinance should be laid F
before the Legislative Assembly of the State Legislature. (paras
17, 18, 19) (256-F-H; 257-A, BJ
5.1.4. What can a Member of the Legislative Assembly
do if an Ordinance is not laid before the State Legislature - is he
without recourse? When an Ordinance is promulgated it is G
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
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178 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 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
B
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
c 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 away by the Executive by
simply not laying the Ordinance before the Legislative Assembly.
Therefore, even without making the laying of an Ordinance before
D the State Legislature mandatory, the Constitution does provide
adequate checks and balances against a possible misuse of power
by the Executive. [Paras 20, 21) [257-D-H)
5.2. Second scenario As far as the second scenario is
concerned, the Executive is entitled to, in view of the provisions
of Article 213(2)(b) of the Constitution advise the Governor of
E the State to withdraw an Ordinance at any time, that is, before
reassembly of the State Legislature or after its reassembly but
before it is laid before the Legislative Assembly. In either situation
(particularly in the latter situation) it could not be said that laying
the Ordinance before the Legislative Assembly would still be
F mandatory. In such situations, no purpose would be served by
laying a withdrawn Ordinance before the State Legislature except
perhaps completing an empty formality. Our Constitution has not
been framed for the sake of completing empty formalities. This
is an additional reason for holding that there is no mandatory
requirement that regardless of the circumstances, an Ordinance
G shall mandatorily be placed before the State Legislature. [Para
22) [258-A-C]
5.3. Third scenario The third scenario is where the
Executive, in accordance with Article 213(2){a) of the Constitution
lays an Ordinance before the Legislative Assembly. The
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 179

Ordinance could be 'ignored' and as a result no one may move a A
Resolution for its disapproval. In that event, the Ordinance would
run its natural course and cease to operate at the expiration of
six weeks of reassembly of the State Legislature. However, if a
Resolution is moved for disapproval of the Ordinance, the State
Legislature may reject the Resolution and in that event too, the B
Ordinance would run its natural course and cease to operate at
the expiration of six weeks of reassembly of the State Legislature.
But if a Resolution for disapproval of an Ordinance is accepted
and the Ordinance disapproved then it would cease to operate
by virtue of the provisions of Article 213(2)(a) of the Constitution
on the Resolution being passed by the Legislative Assembly and C
the Legislative Council agreeing with it. [Paras 24-26] [258-E-
H]
6. When a Bill is introduced in the Legislative Assembly, it
becomes the property of the Legislative Assembly and even
assuming an Ordinance is laid before the State Legislature and is D
disapproved by a Resolution, the disapproval has no impact on
the Bill. Conversely, if the introduction of a Bill is declined by
the Legislative Assembly or a Bill introduced in the Legislative
Assembly is de.feated, it will have no impact on an Ordinance laid
before the Legislative Assembly which will continue to operate
till it is disapproved or it ceases to operate at the expiration of E
six weeks of reassembly of the Legislative Assembly. Whether
to pass or not pass or enact or not enact a Bill into a law is entirely
for the Legfslative Assembly to decide regardless of the fate of
the Ordinance, as is obvious or is even otherwise evident from
Blmpendra Kumar Bose. Similarly, disapproval of an Ordinance F
is entirely for the Legislative Assembly and the Legislative
Council to decide regardless of the fate of any Bill introduced or
sought to be introduced. [Para 29] (259-E-G]
7. Effect of concluded transactions under an Ordinance
When an Ordinance is sought to be replaced by a Bill G
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 H
180 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 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. When
an Ordinance ceases to operate, there is no doubt that all actions
B
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
cannot continue without any basis in law. All actions intended to
c be commenced on the basis of the Ordinance cannot commence
after the Ordinance has ceased to operate. As far as an Act enacted
by a State Legislature is concerned, there is no difficulty in
appreciating the consequence of its repeal. Section 6 of the
General Clauses Act, 1897 is quite explicit on the effect of the
D repeal of an Act passed by a Legislature. In so far as a temporary
Act is concerned, actions taken during its life but not concluded
before it terminates (pipeline transactions) will not continue
thereafter since those actions and transactions would not be
supported by any existing law. However, to tide over any difficulty
that might be caused in such an eventuality, a temporary Act could
E provide for the continuance of such actions and transactions. The
reason for this is that a temporary Act is enacted by the Legislature
and it certainly has the power to cater to such eventualities.
Therefore, if there is a permissive provision to the contrary, a
pipeline transaction could survive the life of a temporary Act. It
must be remembered that an Ordinance has "the same force and
F
effect as an Act of the Legislature of the State assented to by the
Governor" (Art. 213(2) of the Constitution) but is not an Act of
the Legislature - it is not even a temporary Act of the Legislature.
(Paras 31, 32, 35, 41) (260-C-H; 261-A-C; 263-G, HJ
Warren v. Windle (1803) 3 East 205; 102 E.R. (KB)
G 578; Steavenson v. Oliver 151 E.R. 1024; Wicks v.
Director of Public Prosecutions [1947) AC 362 -
referred to.
8. Historical background Section 88 of the Government of
India Act, 1935 gave power to the Governor of a Province to
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 181

promulgate an Ordinance during the recess of the Legislature, if A
he is satisfied that circumstances exist which render it necessary
to take immediate action. Section 90 of the Act, 1935 gave an
extraordinary power to the Governor to enact a Governor's Act
containing such provisions as he considers necessary. Sub-
section (3) of Section 90 of the Act, 1935 provides that a
Governor's Act shall have the same force and effect as an Act of B
the Provincial Legislature assented to by the Governor. The
significance of having two separate provisions, Section 88 and
Section 90 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 c
terms of Section 88 of the 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
D
have been no occasion for enacting Section 90 of the 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. 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 Act, 1935. E
However, it retained the impermanence of an Ordinance as is
clear from a reading of Article 213 of the Constitution. The
retention of impermanence is also clear from a reading of Article
213 of the Constitution in juxtaposition with some other provisions
of the Constitution. For example, Article 357(2) of the Constitution
F
(as originally framed) provided that Parliament or the President
or any other authority may exercise the power of a State
Legislature in making a law during a Proclamation of an
emergency issued under Article 356 of the Constitution.
However, that law shall cease to have effect on the expiration of
one year after the Proclamation has ceased to operate "except G
as respects things done or omitted to be done before the
expiration of the said period ...... " By the Constitution (Forty-
second Amendment) Act, 1976 the period of one year was deleted
and such law shall continue in force until altered or repealed or
amended by a competent Legislature or other authority even after
H
182 SUPREME COURT REPORTS [2017] 5 S.C.R.

A the Proclamation issued under Article 356 of the Constitution
has ceased to operate. [Paras 51-54] [267-E-H; 268-A-E)
9. Similar provisions excepting things done or omitted to
be done (for a limited period of six months) are found in Article
249 and Article 250 of the Constitution notwithstanding that a
B Resolution passed under Article 249 of the Constitution has
ceased to be in force (in the case of Article 249 of the
Constitution) or a Proclamation issued under Article 356 of the
Constitution has ceased to operate (in the case of Article 250 of
the Constitution). Although Article 359(1-A) of the Constitution
was not a part of the Constitution as originally framed, it too
c provides for saving things done or omitted to be done before the
law ceases to have effect. Brother Chandrachud has sufficiently
dealt with these and other similar provisions of the Constitution
and it not necessary to repeat the views expressed in this regard.
It is clear, therefore, that in the absence of a savings clause Article
D 213 the Constitution does not attach any degree of permanence
to actions or transactions pending or concluded during the
currency of an Ordinance. It is apparently for this reason that it
was observed in Bhupendra Kumar Bose that in view of Article
213(2)(a) of the Constitution, an Ordinance cannot have a savings
clause which extends the life of actions concluded during the
E currency of the Ordinance. Therefore, there is a recognizable
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
F is enacted by a Legislature while an Ordinance is legislative action
taken by the Executive. [Paras 55-58] (268-F-H; 269-A-C)
S. Krishnan v. State of Madras (1951] SCR 621 - relied
on.
10. In view of Article 213(2) of the Constitution an
G Ordinance cannot, on its own terms, create a right or a liability of
an enduring or irreversible nature otherwise an extraordinary
power would be conferred in the hands of the Executive and the
Governor of the State which is surely not intended by our
Constitution. If such a power were intended to be conferred
H upon the Executive and the Governor of the State, it would be
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 183

bringing in Section 90 of the Government of India Act, 1935 into A
our Constitution through the back door. If a situation could be
reversed through the enactment of a retrospective law, then surely
the status quo ante can be restored on the lapsing of an Ordinance
by efflux of time or its disapproval by the Legislative Assembly.
The same can be said of an action or transaction of an enduring
B
nature. Undoubtedly, there are a few physical facts that are of an
enduring nature or irreversible. For example, if an Ordinance
were to provide for the imposition of the death penalty for a
particular offence and a person is tried and convicted and executed
during the currency of the Ordinance, then obviously an
irreversible situation is created and even if the Ordinance lapses c
by efflux of time or is void, the status quo ante cannot be restored.
So also in a case of demolition of an ancient or heritage monument
by an Ordinance. Such physically irreversible actions are few and
far between and are clearly distinguishable from 'legally
irreversible' actions. There is a distinction between actions that
D
are 'irreversible' and actions that are reversible but a burden to
implement. The situations that arose in Bliupendra Kumar Bose
and Venkata Reddy were not physically irreversible though
reversing them may have been burdensome. (Paras 64-66) [271-
B-G)
E
Nabam Rebia v. Deputy Speaker, Arunachal Pradesh
Legislative Assembly (2016) 8 SCC 1:(2016) 6 SCR 1
- relied on.
Validity of the Ordinances
11.1. All the Ordinances have ceased to operate and nothing F
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 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 G
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. It is not every re-
promulgation of an Ordinance that is prohibited by D.C. Wadhwa
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184 SUPREME COURT REPORTS [2017] 5 S.C.R.

A v. State of Bihar. There is no universal or blanket prohibition
against re-promulgation of an Ordinance, but it should not be a
mechanical re-promulgation and should be a very rare
occurrence. Additionally, a responsibility is cast on the Governor
of a State by the Constitution to promulgate or re-promulgate an
Ordinance only if he is satisfied of the existence of circumstances
B
rendering immediate action necessary. [Para 68] [272-C-F]
U.2. Only the fourth and subsequent Ordinances wen~
challenged by the employees. As far as the fourth and subsequ~ilt
Ordinances are concerned, their promulgation and re•
promulgation was not adequately justified by the State of Bihar
c despite a specific challenge. There was no immediate action
required to be taken necessitating the promulgation of the fourth
Ordinance and its re-promulgation by subsequent Ordinances.
The fourth Ordinance and subsequent Ordinances should be
struck down. In the absence of any challenge to the first three
D Ordinances, the benefit given to the employees (such as salary
and perks) by these Ordinances till they ceased to operate arc
justified. However, these three Ordinances did not and could
not grant any enduring or irreversible right or benefits to the
employees and the employees did not acquire any enduring or
irreversible right or benefits under these three Ordinances. Any
E right or benefits acquired by them terminated when the
Ordinances ceased to operate. Despite a specific challenge made
to the fourth and subsequent Ordinances, the State of Bihar has
not justified their promulgation. They are therefore struck down.
The directions given by the High Court for payment of salary (if
F not already paid) and interest thereon need not be disturbed.
[Paras 69-72] (272-G; 273-A-D]
Bhupendra Kumar Buse v. State uf Orissa OJC No.12
of 1959 decided on 20.03.1959 by the Orissa High Court
[MANU/OR/0014/1960]; D.C. WadlllVa v. State of
G Bihar (1987) 1 SCC 378: (1987] lSCR 798- referred
to.
T. S. Thakur, CJI (Concurring)
1. Repeated rcpromulgation of the ordinances was a fraud
on the Constitution especially when the Government of the time
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 185

appears to have persistently avoided the placement of the A
ordinances before the legislature. Even Lokur, J. found
repromulgated ordinances to be unconstitutional except for the
first three ordinances which, according to His Lordship, survive
not because they were unaffected by the vice of unconstitutionality
but because they were not challenged by the petitioners. The
B
need for such a challenge did not arise. Because the first, second
and third ordinances stood repealed by the subsequent ordinances
issued by the Government. At any rate, since the process of
issuing the ordinances and repromulgation thereof was in the
nature of a single transaction and a part of a single series on the
same subject the vice of invalidity attached to any such exercise c
of power would not spare the first, second and the third ordinances
which would like the subsequent ordinances be unconstitutional
on the same principle. These ordinances provided the foundation
for the edifice of the subsequent repromulgations. If the edifice
was affected, there is no way the foundation could remain
D
unaffected by the vice of unconstitutionality. 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. [Para
3] [274-C-H; 275-A] E
2. The nature of power invoked for issuing ordinances does
not admit of creation of enduring rights in favour of those affected
by such ordinances. The ordinances issued in the instant case
could not have created any enduring rights in favour of Sanskrit
school teachers particularly when the ordinances themselves were F
a fraud on the Constitution. The teachers who were paid their
salaries under the ordinances and who organised their lives and
affairs on the assumption and in the belief that the amount paid to
them was legitimately due and payable cannot at this distant point
of time be asked to cough up the amount disbursed to them.
Payments already made shall not accordingly be recoverable from G
those who have received the same. The question of interpretation
of Articles 123 (2) and 213(2) in so far as the obligation of the
Government to place the ordinance before the Parliament/
legislature is left open. [Paras 4-6] [275-C-G; 276-G]
H
186 SUPREME COURT REPORTS [2017] 5 S.C.R.

A State of Orissa v. Bhupendra Kumar Bose [1962] Suppl.
2 SCR 380; T. Venkata Reddy v. State ofAndhra Pradesh
(1985) 3 SCC 198 : (1985) 3 SCR 509 - overruled.
D.C. Wadhwa and Ors. v. State of Bihar and Ors. (1987)
1 SCC 378 : (1987] 1 SCR 798 - referred to.
B Case Law Reference
In the Judi:;ment of Dr. D.Y. Chandrachud, J.:
[1987] 1 SCR 798 relied on Para 1
(1998) 3 SCR 206 referred to Para 3
c [1982) 1 SCR 947 referred to Para 33
(1982) 2 SCR 272 referred to Para 34
(1970) 3 SCR 530 referred to Para 37
[1982] 2 SCR 272 referred to Para 39
(1971) 3 SCR 9 referred to Para 39
D
(1978) 1 SCR 1 referred to Para 39
(1994) 2 SCR644 referred to Para 39
[1992] 2 Suppl. SCR 454 referred to Para 40
(1987) 1 SCR 798 referred to Para 45
E AIR (1959) AP 471 referred to Para 47
(1955) SCR 893 referred to Para 51
[1962) Supp. (2) SCR 380 Disapproved Para 55
(1985) 3 SCR 509 Disapproved Para 56
(1994] 2 SCR 644 referred to Para 63
F [1978] 1 SCR 1 referred to Para 63
[1951] SCR 228 referred to Para 65
(2000] 2 Suppl. SCR 211 relied on Para 74

G In the Judgment of Madan B.Lokur, J.:
(1985] 3 SCR 509 overruled Para2
[1962 Supp (2) SCR 380 overruled Para 28
(1951) SCR 621 relied on Para 35
(2016) 6 SCR I relied on Para 66
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 187

[1987) 1 SCR 798 referred to Para 68 A

In the Judgment of T. S. Thakur, CJI:
[1987) 1 SCR 798 referred to Para 1
(1962) Supp. 2 SCR 380 overruled Para2
B
[1985) 3 SCR 509 overruled Para2
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5875
of 1994.
From the Judgment and Order dated 09.03.1994 of the High Court
of Patna in CWJC No. 7844 of 1990 c
WITH
Civil Appeal No. 5876-5890of1994
Writ Petition (C) No. 580 of 1995
Civil Appeal No. 3533-3595of1995. D
Ranjit Kumar, SG, Mukul Rohtagi, AG, A.N.S. Nadkarni, ASG,
T.R. Andhyarujina (A.C.), Salman Khurshid, Rakesh Dwivedi, V. Giri,
C.U. Singh, Sr. Advs., Ms. Madhvi Divan, Ms. Binu Tamta, Dhruv Tamta,
Ritesh Kumar, S.S. Rebello, Amogh V. Prabhudesai, Ajay Sharma,
Subhash Acharya, Pankaj Pandey, B.K. Prasad, L.R. Singh, E
Ms. Shabeena Anjum, Ms. Mitali Chauhan, Ms. Gargi Srivastava,
Ms. Shubhi Sharma, Akhilesh Pandey, Gopal Singh, Manish Kumar,
Ms. Vimla Sinha, Rituraj Biswas, Chandan Kumar, Shivam Singh, Aditya
Raina, Shreyas Jain, AdvitiyaAwasthi, Ms. Varsha Poddar, Milind Kumar,
Sagar Chakravarty, Ram Kishore Singh, Ms. Sansriti Pathak,
F
Ms. Apoorva Garg, Ms. Babita Kushwaha, Devashish Bharuka,
Ms. Anu Tyagi, Ms. Jennifer Rohita, Ms. Jaya Bharuka, Ravi Bharuka,
Ms. Arpita Bishnoi, Manav Vohra, Ms. Svadha Shankar, C.D. Singh,
Ms. Sylona Mohapatra, Rahul Rajput, Pankaj Pandey, R.C. Upadhya,
Ms. Madhavi Diwan, B.K. Prasad, Ms. Nidhi Khanna, Ritin Rai, Niraj
Gupta, Ms. Anshu Gupta, IrshadAhmad, Ms. Kamini Jaiswal, B.B. Singh, G
P. Narasimhan, Ms. Manjula Gupta, Gopal Singh, Subhash Sharma, Anil
Kumar, Prem Sunder Jha, R.U. Upadhyay, Rakesh Kumar Sharma, S.R.
Setia, Advs. for the appearing parties.
The following Judgments and Orderofthe Court were delivered by
H
188 SUPREME COURT REPORTS [2017] 5 S.C.R.

A DR. D. Y. CHANDRACHUD, J.
A Re-promulgation of Ordinances : the background to the
teference
A professor of economics who was pursuing his research on land
tenures in Bihar stumbled upon a startling practice. Ordinances were
B promulgated and re-promulgated by the Governor ofBihar - two hundred
fifty six of them between 1967 and 1981. These Ordinances were kept
alive for la,ng periods, going upto fourteen years. This academic research
into the re~promulgation of Ordinances became the subject of a book 1
and a petition under Article 32 of the Constitution. The book provided
c the backdrop ofajudgment ofa Constitution Bench of this Court in DC
Wadhwa v. State ofBihar. 2 The Constitution Bench held that the practice
which had been followed in the State of Bihar was in disregard of
constitutional limitations.An exceptional power given to the Governor to
make Ordinances in extra-ordinary situations had, in the manner of its
exercise, taken over the primary law making function of the legislature
D in the state. The Constitution Bench deprecated the rule by Ordinances:
the 'Ordinance-raj' 3•
2. The judgment of the Constitution Bench was delivered on 20
December 1986. Barely three years after the decision, the Governor of
Bihar promulgated the first of the Ordinances which is in issue in this
E case, providing for the taking over of four hundred and twenty nine
Sanskrit schools in the state, The services of teachers and other employees
of the school were to stand transferred to the state government subject
to certain conditions (which would be elaborated upon later in this
judgment). The first Ordinance was followed by a succession of
F Ordinances. None of the Ordinances, which were issued in exercise of
the power of the Governor under Article 213 of the Constitution, were
placed before the state legislature as mandated. The state legislature.did
not enact a law in terms of the Ordinances. The last of them was allowed
to lapse. -

G 3. Writ proceedings 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

1
Re-promulgation of Ordinance: A fraud on the Constitution oflndia
2 (1987) 1 sec 378
H ' [Id. at paragraph 8, page 395]
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 189
[DR. D. Y. CHANDRACHUD, J.]

appeal against the decision of the High Court came up before a Bench A
of two judges of this Court in Krishna Kumar Singh v. State ofBihar4,
both the judges - Justice Sujata Manohar and Justice b 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 B
Sujata Ma~ohar 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 C
constitutional.

4. When the case came up before a Bench of three judges>, it
was referred to a Bench of five judges on the ground that it raised
substantial questions relating to the Constitution. 6 The proceedings before
the Constitution Bench on 23 November 2004 have resulted in a reference D
to a larger Bench of seven Judges. The basis of the reference is best
understood from the order of reference which reads thus :

"During the course of hearing, Mr. P.P. Rao, learned senior counsel
for the appellants placed reliance on the decisions of this Court in
State ofOrissa vs. Bhupendra Kumar Bose, 1962 (Supp.2) SCR E
380 .and T.Venkata Reddy and Ors. vs. State of Andhra Pradesh,
1985 (3) SCC 198. The learned Solicitor General brought to the
notice of this Court the decision in State of Punjab vs. Sat Pal
Dang & Ors., 1969 ( 1) SCR 4 78. All these decisions are
Constitution Bench decisions. Mr.Rakesh Dwivedi, learned senior F
counsel for the respondent-State ofBihar, however, relied on a 9-
Judge Bench decision of this Court in S R Bommai and Ors. vs.
Union of India and Anr., 1994 (3) SCC .1 and in particular
paragraphs 283 to 290 thereof.
We are of the opinion that these matters call for hearing by a 7- G
Judge Bench of this Court. Be listed accordingly."

'(1998) 5 sec 643
5
Justices SP Bharucha, GB Pattanaik and S RajendraBabu
•Order dated 6 November 1999 in CA 5875 of 1994
H
190 SUPREME COURT REPORTS [2017] 5 S.C.R.

A As the above extract indicates, the three decisions of Constitution
Benches which have been noticed are those in Bhupendra Kumar
Bose, T Venkata Reddy and Satpal Dang. The nine judge Bench
decision in Bommai was relied upon, on the other hand by counsel for
the State. Bommai, it has been urged, warrants a reconsideration of
the earlier decisions. That has given rise to the reference.
B
B The Ordinances
5. The first Ordinance, called The Bihar Non-Government Sanskrit
Schools (Taking Over of Management and Control) Ordinance, 1989 -
was promulgated by the Governor of Bihar on 18 December 19897 •
c The Ordinance contains a recital of the satisfaction of the Governor
that:
"44 .... circumstances exist which render it necessary for him to
take immediate action for the taking over of non-government
Sanskrit schools for management and control by the State
D Government for improvement, better organization and development
of Sanskrit education in the State of Bihar." (Id at pg.665)
Clause 3 of the Ordinance provided for the taking over of the management
and control of four hundred and twenty nine Sanskrit schools (named in
Schedule 1) by the state government. Clause 3 was as follows:
E "3. Taking over of management and control of non-government
Sanskrit schools by State Government - (I) With effect from the
date of enforcement of this Ordinance 429, Sanskrit schools
mentioned in Schedule I shall vest in the State Government and
the State Government shall manage and control thereafter.
F (2) All the assets and properties of all the Sanskrit schools
mentioned in sub-section (I) 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
G
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
H 'Ordinance 32 of 1989
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 191
[DR. D. Y. CHANDRACHUD, J.]

accordance with the prescribed standard and staffing pattern prescribed A
by the state government prior to the Ordinance. Staff in excess of the
sanctioned strength and those not possessing the required qualifications
or fitness were to stand automatically terminated. Clause 4 was in the
following terms :
"4 Effect of taking over the management and control-( 1) With B
effect from the date of vesting of Sanskrit schools mentioned in
Schedule 1 under Section 3( 1) in the State Government, the
services of all those teaching and non-teaching employees of the
schools mentioned in Schedule 1, who have been appointed
permanently/temporarily against sanctioned posts in accordance
with the prescribed standard, staffing pattern as prescribed by c
the State Government prior to this Ordinance shall stand transferred
to the State Government. He shall be employee of the State
Government with whatsoever designation he holds:
Provided, that the services of those teaching or non-teaching
employees who are in excess of the sanctioned strength or do not D
possess necessary fitness/qualification shall automatically stand
terminated.
(2) Teachers of the Sanskrit schools taken over by the Government
shall be entitled to the same pay, allowances and pension etc. as
are admissible to teaching and non-teaching employee of the taken- E
over secondary schools ofBihar".
Under clause 5, management and control of the schools taken over by
the state government was to remain with the Director of Education of
the Government, incharge of Sanskrit Education. The Ordinance made
provisions for, among other things, the constitution of managing F
committees (clause 6), powers and functio!].S of managing committees
(clause 7), functions of the Headmasters (clause 8), accounts and audit
of the Sanskrit schools taken over by the State Government (clause 9),
constitution of a Sanskrit Education Committee relating to development
of Sanskrit education in the State (clause 10), offences and penalties for G
contravention of the provisions of the Ordinance (clause 11 ), cognizance
of offences (clause 12), protection of action taken in good faith (clause
13), power to make rules (clause 14) and power to remove difficulties
(clause 15).The schedule to the Ordinance listed out four hundred and
twenty nine Sanskrit schools situated in several districts of the state.
H
192 . SUPREME COURT REPORTS [2017] 5 S.C.R .

A Along side each school was the strength of standard teaching and non-
teaching staff. ·
6. Ordinance 32 of 1989 was promulgated on 16 December 1989
and was published in the Bihar Gazette Extra ordinary on 18 December
1989. The life of the first Ordinance8 was for a period of two months
B 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
C the 'third in the succession of Ordinances 9 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.
D 7. On 13 August 1990 the Governor promulgated a fresh
Ordinance. 10 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 f9llows :-
"3 Taking over of management and control of non-government
E Sanskrit schools by State Government.-( l) 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. ...
But the Sanskrit schools mentioned inAnnexure 1 of this Ordinance
F will be investigated through the Collector concerned and if it will
be found in the report of the Collector that such school is not in
existence, in this case State Government will remove the name of
that school fromAnnexure 1 of the Ordinance through notification
in State Gazette.
G (2) All the assets and properties of all the Sanskrit schools,
mentioned in sub-section ( 1) and ofthe governing bodies, managing
'The Vidhan Sabha was convened for its 11th session which lasted from 29 June 1989
to 3 August 1989 after the Ordinance was promulgated, the 12th Session of the Vidhan
Sabha commenced on 18 January 1990.
•Ordinance 14of1990.
H " Ordinance 21 of 1990
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 193
[DR. D. Y. CHANDRACHUD, J.]

committees, incidental thereto whether moveable or immovable A
including lands, buildings, documents, books and registers, cash-
balance, reserve fund, capital investment, furniture and fixture
and other things, shall on the date of taking over, stand transferred
to and vest in the State Government free from all encumbrances.
4. Effect of taking over the management and control.-( I) B
The staff working in the Sanskrit schools mentioned in Annexure
1 of the Ordinance related to integration of its management and
control into the State Government as per Schedule 3(1), will not
be the employees of this school until and unless the Government
comes to a decision regarding their services.
c
(2) State Government will appoint. a Committee of specialists and
experienced persons to enquire about the number of employees,
procedure of appointment as well as to enquire about the character of
the staff individually and will come on a decision about validit)'. of posts
sanctioned by governing body of the school, appointment procedure and
affairs ofpromotions or confirmation of services. Committee will consider D
the need of institution and will submit its report after taking stock of the
views regarding qualification, experience and other related and relevant
subjects. Committee will also determine in its report whether the directives
regarding reservation for SC, ST and OBCs has been followed or not.
(3) State Government, after gettingthe report, will determine the number E
of staff as well as procedure of appointments and will go into the affair
of appointment of teaching and other staff on individual basis and in the
light of their merit and demerit will determine whether his service will be
integrated with the Government or not. Government will also determine
the place, salary, allowances and other service conditions for them". F
Clause 16 provided for repeals and savings in the following terms:
"16. Repeal and savings.-(!) The Bihar Non-Government
Sanskrit Schools (Taking Over of Management and Control)
Ordinance, 1990 (Bihar Ordinance 14, 1990) is hereby repealed.
G
(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
pow~rs 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."
H
194 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 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 11 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. 12
B
The next session of the Vidhan Sabha took place from 1 December
1991to18 December 1991. Upon the conclusion of the session, the
seventh of the Ordinances was promulgated on 21January1992.13 The.
session of the Vidhan Sabha took place between 20 March 1992 and 27
March 1992. The Ordinance lapsed on 30 April 1992.
·c
8. The Ordinances promulgated by the Governor followed a
consistent pattern. None of the Ordinances was laid before the legislature.
Each one of the Ordinances lapsed by efflux of time, six weeks afterthe
convening of the session of the legislative assembly. When the previous
Ordinance ceased to operate, a fresh Ordinance was issued when the
D legislative assembly was not in session. The legislative assembly had no
occasion to consider whether any of the Ordinances should be approved
or disapproved. No legislation to enact a law along the lines of the
Ordinances was moved by the government in the legislative assembly.
The last of the Ordinances, like its predecessors, cease to operate as a
result of the constitutional limitation contained in Article 213 (2)(a). The
E
subject was entirely governed by successive Ordinances; yet another
illustration of what was described by this Court as an Ordinance raj
barely three years prior to the promulgation of the first in this chain of
Ordinances.

F C Proceedings before the High Court
9. The High Court framed the following issues for consideration :
(i) Whether the Sanskrit schools stood denationalised upon the
expiry of the Ordinances;
G (ii) Whether as a result of clause 4 of the fourth Ordinance 14 the
employees had ceased to be government servants which they

" Ordinance I 0 of 1991
12
Ordinance 31 of 1991
" Ordinance 2 of 1992
14
Ordinance 21 of 1990
H
KRlSHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 195
[DR. D. Y. CHANDRACHUD, J.]

have become in terms of the first Ordinance 15 promulgated A
on 18 December 1989;
(iii) Whether the fourth Ordinance was ultra vires Article 14 of
the Constitution;
(iv) Whether the services of the teachers must be regularised and
they ought to be treated as government servants; and B

(v) Whether, in any event the petitioners were entitled to their
salaries and emoluments.
10. The High Court held that there was no permanent vesting of
the schools in the State of Bihar, notwithstanding the expiry of the c
Ordinances. In the view of the High Court, the power to promulgate
Ordinances is not a rule but an exception and is conferred upon the
Governor to deal with emergent situations. The High Comi held that in
the present case there was a promulgation of successive Ordinances
contrary to the decision of the Constitution Bench in D C Wadhwa.
Moreover, none of the Ordinances has been laid before the legislature. D
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 E
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 F
an earlier Ordinance and only those who pas.sed 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 warranted, the High Court noted that G
upon inquiry three hundred and five schools were found to be genuine,
while at least one hundred and one did not fulfil the criterion for being
taken over. The High Court held that the petitioners were entitled to
salary as government servants until 30 April 1992, the last date of the
"Ordinance 32 of 1989
H
196 SUPREME COURT REPORTS [2017] 5 S.C.R.

A validity of the Ordinances, for the period during which the Ordinances
had subsisted. The High Court finally held that in terms of its findings
the management of the schools would be governed in the same manner
that prevailed prior to the promulgation of the first Ordinance,
D The two differing judgments
B 11. Before the Bench of two judges of this Court 16, there was an
agreement in the two separate judgments delivered by Justice Sujata V
Manohar and Justice D P Wadhwa that commencing with the second
ordinance, the re-promulgated Ordinances were ultra vires. Justice
Sujata Manohar held that the manner in which a series of Ordinances
c was promulgated by the State of Bihar constituted a fraud on the
Constitution. In the view of the learned judge:
"24 .... The State ofBihar has not even averred that any immediate
action was required when the 1st Ordinance was promulgated. It
has not stated when the Legislative Assembly was convened after
D the first Ordinance or any of the subsequent Ordinances, how
long it was in session, whether thee Ordinance in force was placed
before it or why for a period of two years and four months proper
legislation could not be passed. The constitutional scheme does
not pennit this kind of Ordinance Raj. In my view, all the Ordinances
form a part of a chain of executive acts designed to nullify the
E scheme of Article 213. They take colour from one another and
perpetuate one another, some departures in the scheme of the 4th
and subsequent Ordinances notwithstanding. All are
unconstitutional and invalid particularly when there is no basis
shown for the exercise of power under Article 213. There is also
F - no explanation offered for promulgating one Ordinance after
another. If the entire exercise is a fraud on tlie power conferred
by Article 213, with no intention of placing any Ordinance before
the legislature, it is difficult to hold that the first Ordinance is valid,
even though all the others may be invalid". (Id at pg.658)
G Alternatively, 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
H "The Referring judgment is reported in (1998) 5 SCC 643:See paragraph 24 at page 161
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 197
[DR. D. Y. CHANDRACHUD, J.]

permanent effect or a right of an enduring nature which subsists beyond A
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 B
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 C
impractical or against public interest to reverse it, e.g., an election
which is validated should not again become invalid. In this sense,
we consider as permanent or enduring that which is irreversible.
What is reversible is not permanent."
(Id at pg.660) D
In this view, when the Ordinance taking over private schools lapsed, the
status quo ante would revive. The first Ordinance was held not to have
any permanent effect. Hence, even if the first Ordinance were to be
valid (which in the view of the learned judge it was not), the teachers
could be considered as government servants only for its duration. E
Moreover, it was held that nothing was done under the first Ordinance;
the inquiry for the purpose of take over under the fourth Ordinance
could not be completed as a result of an interim stay and since all the
Ordinances had ceased to operate and none of them could be considered
as permanent in effect, no directions could be given for enforcing them.
F
12. Justice D P Wadhwa, on the other hand differed with the
view of Justice Sujata Manohar 'in regard to the validity of the first
Ordinance. The learned Judge formulated his reasons in the following
propositions :
"59 .... (1) It is fairly established that Ordinance is the "law" and G
should be approached on that basis.
(2) An Ordinance which has expired has the same effect as a
temporary Act of the legislature.
(3) When the Constitution says that Ordinance-making power is
H
198 SUPREME COURT REPORTS [2017] 5 S.C.R.

A a legislative power and an Ordinance shall have the same fqrce
as an Act, an Ordinance should be clothed with all the attributes
of an Act of the legislature carrying with it all its incidents,
immunities and limitations under the Constitution and it cannot be
treated as an executive action or an administrative decision.
B (4) Regard being had to the object of the Ordinance and the right
created by it, it cannot be said that as soon as the Ordinance
expired the validity of an action under the Ordinance came to an
end and invalidity of that action revived.
( 5) What effect of expiration of a temporary Act would be must
c depend upon the nature of the right or obligation resulting from
the provisions of the temporary Act and upon their character
whether the said right and liability are enduring or not.
( 6) If the right created by the temporary statute or Ordinance is
of enduring character and is vested in the person, that right cannot
D be taken away because the statute by which it was created has
expired.
(7) A person 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.
E (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
F revive closed or completed transactions.
(I 0) 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 Jaw can be passed operating
G 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
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 199
[DR. D. Y. CHANDRACHUD, J.]

effect was irreversible. The Ordinance was promulgated to A
achieve a particular object of taking over the Sanskrit schools in
the State including their assets and staff and this having been
done and there being no legislation to undo the same which power
the legislature did possess, the effect of the Ordinance was of
permanent nature. The Ordinance is like a temporary law enacted B
by the legislature and if the law lapses, whatever has been achieved
there under could not be undone, viz., if under a temporary law
land was acquired and building constructed thereon, it could not
be said that after the temporary law lapsed the building would be
pulled down and land reverted back to the original owner". (Id at
~~) c
In this view, rights which had been vested could not be taken away
unless the legislature was to enact a law taking them away and re-
vesting the property in the managing committee. The rights which had
vested in the employees were held to be of an enduring character which,
it was held, could not be taken away merely because the Ordinance, like D
a temporary statute ceased to operate. Justice Wadhwa thus approached
the matter in dispute from two perspectives. Firstly, the Ordinance was
placed on the same footing as a temporary statute and was held to have
created rights of an enduring character that would survive the Ordinance
upon its ceasing to operate. Secondly, vested rights created under the
Ordinance could, in this view, be reversed only by a fresh legislation E
enacted by the legislature. The essential difference between the
perspectives of the two judges was precisely this: while Justice Sujata
Manohar held that all the Ordinances were part of a chain of promulgation
and re-promulgation and constituted a fraud on the Constitution, Justice
Wadhwa held that it was only the re-promulgation after the first Ordinance F
that was ultra vires. The first Ordinance was in his view a valid exercise
of constitutional power and had created enduring rights which would
continue even after the Ordinance ceased to operate. This enduring
consequence could only be reversed by legislation.
13. Now it is in this background that it would be necessary to G
advert to the evolution and scope of the Ordinance making power.
E Historical evolution
E.1 England
14. In the United Kingdom, the prerogative of the Monarch to
H
200 SUPREME COURT REPORTS [2017] 5 S.C.R.

A legislate domestically was set at rest about four hundred years ago by
Sir Edward Coke by his opinion in The Case of Proclamations. 17 • The
opinion ruled that :
"The King by his proclamation or other ways cannot change any
part of the common law, or statute law, or the customs of the
B 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 ru!Cd, had no prerogative but that which the
law of the land allowed him. The vestiges of the power of the King to
c 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, 18 Lord Justice Sedley speaking
for the Court of Appeal observed :
"The exercise of the Monarch's prerogative has passed since
D 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 inThe Zamora [1916] 2 AC 77, 90:
E
"The ideas that the King in Council, or indeed any branch
of the executive, has power to prescribe or alter the law
to be administered by the courts of law in this country is
out of harmony with the-principles of our Constitution"."
(emphasis supplied)
F
15. Tracing the evolution of the King's power to make
proclamations in England following the opinion of Sir Edward Coke,
Shubhankar Dam in a recently published work on the subject 19 observes:
"Although the decision brought conceptual clarity, regal practice
varied. Monarchs continued making Ordinances (of the unlawful
G kind) and enforced them too. Only with the establishment of
parliamentary supremacy towards the end of the seventeenth
17
(1611) 12 Co Rep 74
IS[2010] 3 WLR 1526
19 Shubhankar Dam - "Presidential Legislation in India The Law and Practice of

H Ordinances [Cambridge University Press- page 144 at pages 37, 38]
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 201
[DR. D. Y. CHANDRACHUD, J.]

century did the law and practice of Ordinances finally become A
consistent; from then on, it would always be a subordinate legislative
power... By the close of the seventeenth century, statutes
represented parliament's ultimate authority to enact legislation
whereas Ordinances, generally speaking, came to represent the
executive's more limited authority to make narrow and specific
B
regulations".
E.2 · British India
16. The dilution of the power of the MotMtch in England to rule
by proclamations was in sharp contrast to the position which prevailed in
the British colonies. The -Governor Generals as representatives of the c
Crown were vested with extensive authority to issue Ordinances. The
Indian Councils Act, 1861 empowered the Governor General to issue
directions which had the force oflaw. A power was conferred upon the
Governor General to issue ordinances by Section 23, subject to two
conditions : (i) the power could be exercised in cases of emergency; and
(ii) an Ordinance would remain in force for a period of not more than six D
months from its promulgation. Under the Government of India Act, 1915,
the power to issue Ordinances was retained. In the Government oflndia
Act, 1935, Section 42 empowered the Governor General to promulgate
ordinances when the Federal Legislature was not in session provided
that he was satisfied that circumstances existed which made it necessary E
that such a law be passed without awaiting reassembly of the legislature.
Section 42(2) provided that an Ordinance promulgated under that
provision would have the same force and effect as an Act of the Federal
Legislature but was required to be laid before the legislature. The.
Ordinance would cease to operate upon the expiration of six weeks
from the reassembly of the legislature or ifbefore that period, resolutions F
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
G
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 H
202 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 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.
Constituent Assembly
B 17. The Union Constitution Committee was appointed by the
Constituent Assembly on 30April 1947 to report on the 'main principles
of the Constitution'. The memorandum which was prepared by B N
Rau, the constitutional advisor envisaged a constitutional power for making
ordinances. The memorandum contemplated that the President may
promulgate an ordinance when Parliament is not in session, upon
c satisfaction that circumstances exist requiring immediate action. The
ordinance would have the same force and effect as an Act of Parliament
but would remain in force for a period not more than six weeks from the
reassembly of Parliament [see in this context B Shiva Rao: The
Framing of India's Constitution 20 ]. B N Rau acknowledged that
D ordinances were the subject of great criticism under colonial rule but
sought to allay the apprehensions which were expressed on the ground
that the President would normally act on the aid and advice of ministers
responsible to Parliament and was not likely to abuse the ordinance
making power.
E 18. After the report of the Union Constitution Committee was
submitted to the Constituent Assembly, the ordinance making power came
up for discussion on 23 May 1949. Professor KT Shah observed that
however justified such a power may appear to be it was "a negation of
the rule of law". He therefore suggested that the power should be so
structured as to retain an extraordinary character to deal with emergent
F situations :
" ... Of course in extraordinary circumstances, as in the case of
an emergency, the use of extraordinary powers would be both
necessary and justified. I think that it is important, therefore to
make it clear, in the heading itself that this is an avowedly
G extraordinary power which may take the form of the legislation
without our calling its legislative power. Legislative power the
executive head should not have. Or it may even take the form of
an executive decree or whatever form seems appropriate in the
circumstances. The point that I wish to stress is that we must not,
20
H Universal Law Publishing New Delhi (2006) Vol .Tl page 485
KRISHNA KUMAR SINGH ~ ANR. v. STATE OF BIHAR 203
[DR. D. Y. CHANDRACHUD, J.].

by any mention here imply or convey or suggest that the law A
making powers of the President are any but extraordinary powers.
I think this is sufficiently clear, and will be acceptable to the
House."
Another member of the Constituent Assembly, B Pocker Sahib, moved
an amendment for the inclusion ofa proviso in draft Article 102(1) in the B
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 c
right of the citizen to be tried by a court oflaw.
19. H V Karnath 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 D
can" and to provide "a constitut}onal 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 E
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 that there were several countries in which the executive
F
did not possess an ordinance making power and there was no justification
"in the new circumstances" for arming the executive with wide powers
of the nature that were conferred by the Government oflndiaAct, 1935.
He opined that the duration of seven and a half months was too long for
the operation of an ordinance. Kunzru observed :
G
" .... .I think therefore that the period should be long enough to
enable the legislature to meet and consider the extraordinary
situation requiring the promulgation of an Ordinance, at any rate
an Ordinance made necessary by factors affecting the peace or
security of the country."
H
204 SUPREME COURT REPORTS [2017] 5 S.C.R.

A "But when the ordinance relates to the peace or security of
the country, or to similar circumstances, requiring
extraordinary action to be taken by the executive under an
Ordinance, then I think, we have to see that the period during
which the Ordinance remains in force is as short as possible,
and that any legislation that may be required should be
B
passed by Parliament after a due consideration of all the
circumstances."
"It is therefore necessary that the legislature should be given
an opportunity, not merely of considering the situation
requiring the passing of an Ordinance, but also the terms of
c the Ordinance."
21. Professor K T Shah expressed the view that even if an
prdinance was issued to meet extraordinary circumstances, it must be
laid immediately upon the assembling of Parliament and must cease to
operate forthwith unless it was approved by a specific resolution. He
D supported the restriction which he proposed on the following grounds :
"Most of us, I am sure, view with a certain degree of dislike or
distrust the ordinance-making power vested in the Chief Executive.
However, we may clothe it, however it may necessary, however
much it may be justified, it is a negation of the rule oflaw. That is
E to say, it is not legislation passed by the normal Legislature, and
yet would have the force of law which is undesirable. Even if it
may be unavoidable, and more than that, even ifit may be justifiable
in the hour of the emergency, the very fact that it is an extraordinary
or emergency power, that it is a decree or order of the Executive
F passed without deliberation by the Legislature, should make it clear
that it cannot be allowed, and it must not be allowed, to last a
minute longer than such extraordinary circumstances would
require."
22. Sardar Hukam Singh moved an amendment which provided
G 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
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 205
[DR. D. Y. CHANDRACHUD, J.].

grow slowly and as this constitution is written and every detail is A
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 B
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 G<;>vernment of India Act, 1935 was a parallel legislative authority c
with an independent power oflegislation even when Parliament was in
session draft Article I 02 conferred an ordinance making power upon
the President only when the legislature was not in session. Justifying the
conferment of the power Dr Ambedkar observed thus :
"My submission to the House is that it is not difficult to imagine D
cases where the powers conferred by the ordinary law existing at
any particular moment may be deficient to deal with a situation
which may suddenly and immediately arise. What is the executive
to do? The executive has got a new situation arisen, which it must
deal with ex hypothesi it has not got the power to deal with that in E
the existing code oflaw. The emergency must be dealt with, and
it seems to me that the only solution is to confer upon the President
the power to promulgate a law which will enable the executive to
deal with that particular situation because it cannot resort to the
ordinary process of law because, again ex hyhpothesi, the
legislature is not in session." F

24. Dr Ambedkar rejected the suggestion that an ordinance should
automatically cpme to an e-nd upon the expiry o(thirty days from its
promulgation. The objections expressed byH N Kunzruto the duration
of an ordinance were not accepted on the ground that Parliament had to
· be convened at intervals not exceeding six months. Moreover, he also G
clarified that the President was to act on the aid and advice of the Council
of Ministers. Draft Article 102 was accordingly approved.
G The Ordinance making power
25. Chapter N of the Constitution contains a single constitutional
H
206 SUPREME COURT REPORTS [2017] 5 S.C.R.

A provision: Article 213. The title to Chapter IV is descriptive of the nature
of the power. The power is described as the "Legislative power of the
Governor". The marginal note to Article 213 describes it as a "power of
Governor to promulgate Ordinances during recess oflegislature".
26. The Constitution has followed the same pattern while
B enunciating the Ordinance making power of the President. Chapter III
contains a sole Article, Article 123 which specifies the "legislative power"
of the President to promulgate Ordinances when Parliament is not in
sess10n.
Article 213 provides as follows :
c "213. Power of Governor to promulgate Ordinances during
recess of Legislature.-(!) If at any time, except when the
Legislative Assembly of a State is in 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
D circumstances exist which render it necessary for him to take
immediate action, he may promulgate such Or.dinances as the
circumstances appear to him to require:
Provided that the Governor shall not, without instructions from
the President, promulgate any such Ordinance if-
E (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
F 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.
G (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 Legislative Assembly of the State,
or where there is a Legislative Council in the State, before both
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 207
[DR. D. Y. CHANDRACHUD, J.]

the Houses, and shall cease to operate at the expiration of six A
weeks from the reassembly of the Legislature, or if before the
expiration of that period a resolution disapproving 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; and
B
(b) may be withdrawn at any time by the Governor.
Explanation.-Where the Houses of the Legislature of a State
paving a Legislative Council are summoned to reassemble on
different dates, the period of six weeks shall be reckoned from
the late_r of those dates for the purposes ofthis clause. c
(3) If and so far as an Ordinance under this article makes any
provision which would not be valid if enacted in an Act of the
Legislature of the State assented to by the Governor, it shall be
void:
Provided that, for the purposes of the provisions of this D
Constitution relating to the effect of an Act of the Legislature ofa
State which is repugnant to an Act of Parliament or an existing
law with respect to a matter enumerated in the Concurrent List,
an Ordinance promulgated under this article in pursuance of
instructions from the President shall be deemed to be an Act of E
the Legislature bf the State which has been reserved for the
consideration of the President and assented to by him."
27. The authority which is conferred upon the Governor to
promulgate Ordinances is conditioned by two requirements. The first is
that an Ordinance can be promulgated only when the state legislature is F
not in session. When the legislature is in session, a law can only be
enacted by it and not by the Governor issuing an Ordinance. The second
requirement is that the Governor, before issuing an Ordinance has to be
satisfied of the existence of circumstances rendering it necessary to
take immediate action. The existence of circumstances is an objective
fact. The Governor is required to form a satisfaction of the existence of G
circumstances which makes it necessary to take immediate action.
Necessity is distinguished from a mere desirability. The expression
"necessity" coupled with "immediate action" conveys the sense that it is
imperative due to an emergent situation to promulgate an Ordinance
during the period when the legislature is not in session. The Governor H
208 SUPREME COURT REPORTS [2017) 5 S.C.R.

A 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
B 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
c 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 situations where the instructions of the President are required
D
are:
(i) Where a Bill containing the same provisions requires the
previous sanction of the President, for its introduction into
the legislature;
E (ii) Where a Bill containing the same provisions would be deemed
necessary by the Governor for being reserved for
consideration of the President; and
(iii) Where a law enacted by the state legislature containing the
same provisions would require the assent of the President,
F failing which it would be invalid.
28. The first of the above conditions arises in a situation such as
the proviso to A1iicle 304(b) of the Constitution.Under Article 304(b ),
the legislature of a state is permitted to impose reasonable restrictions in
the public interest on the freedom of trade, commerce or intercourse
G with or within that state (notwithstanding anything in Articles 301 or
303). The proviso requires the previous sanction of the President before
a Bill or amendment for the purposes of clause (b) can be introduced .in
the state legislature. An illustration of the second requirement ((ii) above)
is provided by Article 200 of the Constitution under which the Governor
is required to reserve for consideration of the President any Bill whichin
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 209
[DR. D. Y. CHANDRACHUD, J.]

his opinion would, if it were to become a law, derogate from the powers A
of the High Court so as to endanger the position which it is designed to
fill by the Constitution. Situations where the ass.ent of the President is
required ((iii) above) are illustrated by Article 254 where a law made by
the state legislature on a matter enumerated in the Concurrent List (of
the VII'h Schedule) is repugnant to a law made by Parliament. The state
B.
law will prevail only if and to the extent to which it has received the
assent of the President. These three situations make it abundantly ~!ear
·that while exercising the power to promulgate an Ordinance, the Governor
is not liberated from the limitations to which the law making power of
the state legislature is subject.
29. An Ordinance which is promulgated by the Governor has (as c
clause 2 of Article 213 provides) the same force and effect as an Act of
the legislature of the state assented to by the Governor. However - and
this is a matter of crucial importance - clause 2 goes on to stipulate in
the same vein significant constitutional conditions. These conditions have
to be fulfilled before the 'force and effect' fiction comes into being. D
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-camera! legislature. Is the
requirement of laying an Ordinance before the state legislature E
mandatory? There can be no manner of doubt that it rs. The expression
"shall be laid" is a positive mandate which brooks no exceptions. That
the word 'shall' in sub-clause (a) of clause 2 ofArticle 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 F
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 shelflife which expires six weeks after the legislature
has assembled. Thereupon, it ceases to operate. In the case of a bi-
cameral legislature where both the Houses are summoned to reassemble G
on different dates the period of six weeks is reckoned w.ith reference to
the later of those dates. Article 174 stipulates a requirement that the
state legislature has to be convened no later than six months of the
,, completion of its last sitting. Consequently, the constitutional position is
H
210 SUPREME COURT REPORTS [7017] S S.C.R.

A that the life of an Ordinance cannot extend beyond a period six months
and six weeks of the reassembling of the legislature. The importance
which the Constitution ascribes to the reassembling of the legislature is
because firstly, that date determines the commencement of the period
of six weeks upon which.the Ordinance shall cease to operate. But
there is a more fundamental significance as well, which bears upon the
B
mandate of an Ordinance being laid before the state legislature. An
Ordinance will cease to operate within the period of six weeks of the
reassembling of the legislature ifa resolution disapproving it is passed by
the legislature. An Ordinance may also be withdrawn by the Governor
at any time. The tenure of an Ordinance is hence brought to an end :
c (i) Bl the Ordinance ceasing to operate upon the expiry of a
period of six weeks of the reassembly of the legislature; or
(ii) If the Ordinance is disapproved by a resolution of the state
legislature in which event it ceases to operate on the resolution
disapproving it being passed; or
D
(iii) In the event of the Ordinance being withdrawn by the
Governor.
30. The laying of an Ordinance before the legislature is mandatory.
Textually, the sense that this is a mandatory requirement is conveyed by
E the expression· "but every such Ordinance shall be laid before the
legislative assembly". Though the Constitution contemplates that an
· Ordinance shall have the same force and effect as a law enacted by the
state legislature, this is subject to the Ordinance being laid before the
state legislature and coming to an end in the manner stipulated in sub-
clauses (a) and (b ).
F
31. Laying of an Ordinance before the state legislature subserves
the purpose of legislative control over the Ordinance making power.
Legislation by Ordinances is not an ordinary source oflaw making but is
intended to meet extra-ordinary situations of an emergent nature, during
the recess of the legislature. The Governor while promulgating an
G Ordinance does not constitute an independent legislature, but acts on the
aid and advice of the Council of Ministers under Article 163. The Council
ofMinisters 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
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 211
[DR. D. Y. CHANDRACHUD, f.]

Seventh Schedule. Constitutional control of Parliament and the state A
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 B
period, a legislature has authority to disapprove the Ordinance. The
requirement oflaying 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 oflegislative powers and as an incident of those
powers, the express constitutional authority to disapprove an Ordinance. C
If an Ordinance has to continue beyond the tenure which is prescribed
by Article 213(2)(a), a law has to be enacted by the legislature
incorporating its provisions. Significantly, our Constitution does not
provide that an Ordinance shall as-sume the character of a law enacted
by the state legislature merely upon the passing of a resolution approving D
it. In order to assume the character of enacted law beyond the tenure
prescribed by Article 213(2)(a), a law has to be enacted. 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. E
32. The failure to lay an Ordinance before the state legislature
constitutes a serious infraction of the constitutional obligation imposed
by Article 213(2). It is upon an Ordinance being laid before the House
that it is formally brought to the notice of the legislature. Failure to lay
the Ordinance is a serious infraction because 'it may impact upon the F
ability of the legislature to deal with the Ordinance. We are not for a
moment suggesting that the legislature cannot deal with a situation where
the government of the day has breached its constitutional obligation to
_lay the Ordinance before the legislature. The legislature can undoubtedly
even in that situation exercise its powers under Article 213(2)(a). G
However, the requirement of laying an Ordinance before the state
legislature is a mandatory obligation and is not merely of a directory
nature.· We shall see how in the present case a pattern was followed by
the Governor ofBihar of promulgating and re-promulgating Ordinances,
none of which was laid before the state legislature. Such a course of
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212 SUPREME COURT REPORTS [2017] 5 S.C.R.

A conduct would amount to a colourable exercise of power and an abuse
of constitutional authority. Now it is in this background, and having thus
far interpreted the provisions of Article 213, that it becomes necessary
to refer to the precedents on the subject and to the nuances in the
interpretation of the constitutional provisions.

B H Precedent
H.1 Nature of the power
33. The headings of both Chapters III and IV indicate that while
promulgating Ordinances, the President under Article 123 and the
c Governor under 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
D constitutional limitations originating in (i) fundamental rights contained in
Part III; (ii) distribution oflegislative 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
E 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
F to the extent of its inconsistency with Part 1II and for that purpose, the
expression 'law' is defined in clause (3)(a) to include an Ordinance.
Article 367(2) of the Constitution provides that: ·

"367 Interpretation
G "(2) Any reference in this Constitution to Acts or laws of, or made
by, Parliament, or to Acts or laws of, or made by, the Legislature
of a State, shall be _construed as including a reference to an
Ordinance made by the President or; to an Ordinance made by a
Governor, as the case may be."
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 213
(DR. D. Y. CHANDRACHUD, J.]

Interpreting these provisions, a Constitution Bench of this Court in R.K. A
Garg v. Union oflndia21 rejected the submission that while promulgating
an Ordinance under Article 123 the President had no power to amend or
alter tax laws. Dealing with the submission that the legislative power
must exclusively belong to elected representatives and vesting such a
power in the executive is undemocratic as it may enable the executive
B
to abuse its power by securing the passage of an ordinary Bill without
risking a debate in the legislature, the Constitution Bench emphasised
the constitutional limitations on the exercise of the ordinance making
powers. Adverting to the speech made by Dr Ambedkar in the Constituent
Assembly the Court noted "that the legislative power conferred on the
President under this Article is not a parallel power oflegislation22 ". Among c
the provisions that the Court emphasised are limitations on when the
power can be exercised and the duration of an Ordinance. The
Constitution Bench carefully emphasised the element oflegislative control
in the following observations:
" ... The conferment of such power may appear to be undemocratic D
but it is not so, because the executive is clearly answerable to the
legislature and if the President, on the aid and advice of the
executive, promulgates an Ordinance in misuse or abuse of this
power, the legislature can not only pass a resolution disapproving
the Ordinance but can also pass a vote of no confidence in the
executive. There is in the theory of constitutional law complete E
control of the legislature over the executive, because if the
executive misbehaves or forfeits the confidence of the legislature,
it can be thrown out by the legislature". (id at paragraph 4, page
688)
34. In the view of the Constitution Bench, "there is no qualitative . F
difference between an Ordinance issued by the President and an Act
passed by Parliament". The same approach was adopted by another
Constitution Bench of this Court in AK Roy v. Union oflndia 23 where
this Court spoke about "the exact equation, for all practical purposes,
between a law ma<le by the Parliament and an ordinance issued by the
G
President"24 • The submission before the Court in a challenge to the validity
of the National Security Ordinance was that an Ordinance is an exercise
21 (1981)4 sec 675
22 (Id at pg.687)
"(1982) 1 sec 211
24 (id at para 14 page 290)
H
214 SUPREME COURT REPORTS [2017]5 S.C.R.

A 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 oflegislative
B 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
c legislative in nature and character. Undoubtedly, the power to promulgate
an Ordinance is a legislative power which has been conferred upon the
President or, as the case may be, the Governors. It is, however, necessary
to emphasise that when the decision in RK Garg speaks of there being
"no qualitative difference" between an Ordinance issued by the President
and an Act of Parliament and the decision in AK Roy speaks of the
D "exact equation for all practical purposes" between the two, these
observations are in the context of the principle that an Ordinance
promulgated under Article 123 or Article 213 of the Constitution is subject
to the same constitutional inhibitions which govern an enactment of the
legislature. Both the decisions of the Constitution Benches have,
E however, placed significant emphasis on the safeguards introduced by
the Constitution to ensure against an abuse of power by the executive in
exercising a legislative power while framing an Ordinance. The decision
in RK Garg emphasised the element of legislative control over an
Ordinance made by the executive. The Constitution Bench in AK Roy,
while noting that the Constituent Assembly conferred an Ordinance
F making power on the heads of the executive in the Union and the States
as a "necessary evil"2', held thus :
"16 ... That power was to be used to meet extraordinary situations
and not perverted to serve political ends. The Constituent Assembly
held forth, as it were, an assurance to the people that an
G extraordinary power shall not be used in order to perpetuate a
fraud on the Constitution which is conceived with so much faith
and vision. That assurance must in all events be made good and
the balance struck by the founding fathers between the powers
25
[Id at para 16 page 292]
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 215
[DR. D. Y. CHANDRACHUD, J.]

of the government and the liberties of the people not disturbed or A
destroyed". (id at pages 292-293)
35. While the Constitution stipulates that an Ordinance shall have
the same force and effect as a law enacted by the legislature, it is
necessary to emphasise that the fiction which is created by Article 213(2)
is subject to its provisions which are : firstly, the duration of an Ordinance B
is limited until the expiration of a period of six weeks from the reassembly
of the legislature; secondly, the duration of an Ordinance can be curtailed
to a period even less than six weeks after the legislature has re-assembled,
upon the passing of a resolution disapproving the Ordinance; and thirdly,
the constitutional requirement that an Ordinance shall be laid before the
legislature. Legislative control upon Ordinances made by the President C
or by the Governors is central to the scheme ofArticles 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 D
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 E
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." F
37. In RC Cooperv. Union oflndia 26 , a Bench of eleven Judges
of this Court held that the presidential power to promulgate an ordinance
is exercisable in extraordinary situations demanding immediate
promulgation of law. This Court held that the determination by the
President was not declared to be final. Justice JC Shah speaking for the G
court observed thus :
"23. Power to promulgate such Ordinance as the circumstances
appear to the President to require is exercised-(a) when both
Houses of Parliament are not in session; (b) the provision intended
" (1970) 1 sec 248 H
216 SUPREME COURT REPORTS [2017] 5 S.C.R.

A to be made-is within the competence of the Parliament to enact;
and ( c) the President is satisfied that circumstances exist which
render it necessary for him to take immediate action. Exercise
of the power is strictly conditioned. The clause relating to
the satisfaction is composite: the satisfaction relates to the
existence of circumstances, as well as to the necessity to
B
take immediate action on account of those circumstances.
Determination by the President of the existence of
circumstances and the necessity to take immediate action
on which the satisfaction depends, is not declared
final."( emphasis supplied)
c Ho:vever, the issue had been rendered academic because the ordinance
had been replaced by a legislative enactment. The justiciability of the
satisfaction was not sonclusively decided.
38. The Constitution (Thirty Eighth Amendment) Act, 1975 was
brought into force on 1 August 1975 during the period of the internal
D emergency. The amendment introduced, among other things, two crucial
provisions into Articles q3 and 213 by which the satisfaction of the
President or, as the case may be of the Governor, was declared to be
final and conclusive and to be immune from being questioned ''in any
court on any ground". Clause 4 of Article 123 provided as follows:
E "24 .... Notwithstanding anything in this Constitution, the
satisfaction of the President mentioned in clause ( 1) shall be final
and conclusive and shall not be questioned in any court on any
ground." (Id at p. 295)
By a similar amendment, clause 4 was introduced into Article 213. The
F effect of the amendment was to grant an immunity from the satisfaction
of the President or the Governor being subjected to scrutiny by any
court. This amendment was expressly deleted by Section 16 of the Forty-
fourth amendment.
39. The. effect of this deletion (of clause 4) was urged before a
G Constitution Bench of this Court in AK Royv. Union of lndia 27 , as a
positive indicator that the satisfaction 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
H 21 (1982) 1 sec 211
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 217
[DR. D. Y. CHANDRACHUD, J.]

of Justice Shah and Justice Hegde in Madhav Rao v. Union oflndia 28 • A
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 B
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) c
In AK Roy, Chandrachud, CJ speaking for the Constitution Bench hel_d
that the issue as to whether the conditions for the exercise of the power
under Article 213 had beenfulfilled could not be regarded as a political
question:
D
"26.Wc see the force of the contention that the question whether
the pre-conditions of the exercise of the power conferred by Article
123 are satisfied cannot be regarded as a purely political question.
The doctrine of the political question was evolved in the United
States ofAmerica on the basis ofits Constitution which has adopted
the system of a rigid separation of power, unlike ours." (Id at p. E
296)
The Constitution Bench held that the earlier case, State ofRajasthan v.
Union of India 29 was decided at a time when the presidential satisfaction
under clause I of Article 123 had been made final by the thirty-eighth
amendment. This Court held that.it is arguable that after the forty-fourth F
amendment, judicial review of the President's satisfaction is not totally
excluded. The observations of Chandrachud, CJ, speaking for the
Constitution Bench are thus :
"27. The Rajas than case [State of Rajas than v. Union pf India,
( 1977) 3 SCC 592 : ( 1978) 1 SCR 1] is often cited as an authority G
for the proposition that the courts ought not to enter the "political
thicket". It has to be borne in mind that at the time when that case
was decided, Article 356 contained clause (5) which was inserted
28 (1971) 3 SCR 9
29
( 1978) l SCR 1
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218 SUPREME COURT REPORTS [2017] 5 S.C.R.

A by the 38thAmendrnent, by which the satisfaction of the President
mentioned in clause (1) was made final and conclusive and that
satisfaction was not open to be questioned in any court on any
ground. Clause (5) has been deleted by the 44thAmendment and,
therefore, any observations made in the Rajasthan case [State
of Rajasthan v. Union of India, (1977) 3 SCC 592 : (1978) 1
B
SCR 1] on the basis of that clause cannot any longer hold good. It
is arguable that the 44th Constitution Amendment Act
leaves no doubt that judicial review is not totally excluded
in regard to the question relating to the President
satisfaction.(Id at p. 297) (emphasis supplied)
C However, in the ultimate analysis, the court declined to go into the question
as regards the justiciability of the President's satisfaction under Article
123(1) since, on the material placed before it, it was not possible for the
court to arrive at a conclusion one way or the other.
The impact of the forty-fourth amendment was noticed by Justice Jeevan
D Reddy in the nine judge bench decision In S R Bommai v. Union of
India 30 :
"379 ... 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
E and deliberately in exercise of the constituent power of Parliament.
(See A.K. Roy v. Union of India [(I 982) 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
F specific reference, in Bommai. The court while construing the provisions
ofArticle 356 noted that clause 5 which expressly barred the jurisdiction
of the courts to examine the validity ofa 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
G 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 ifthe
invalidity or unconstitutionality of the Proclamation is clearly made
H -' 0 (1994) 3 sec 1
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 219
[DR. D. Y. CHANDRACHUD, J.]

out. Refusal to interfere in such a case would amount to abdication A
of the duty cast upon the court- Supreme Court and High Courts
- by the Constitution." (Id at p.266-267) r
The standard of judicial review was formulated in the following
observations :
"374 ..... the truth or correctness of the material cannot be B
questioned by the court nor will it go into the adequacy of the
material. It will also not substitute its opinion for that of the
President. Even if some of the material on which the action is
taken is found to be irrelevant, the court would still not interfere
so long as there is some relevant material sustaining the action.
The ground of mala fides takes in inter alia situations where the
c
Proclamation is found to be a clear case of abuse of power, or
what is sometimes called fraud on power --: cases where this
power is invoked for achieving oblique ends." (Id at p. 268)
40. Applying the principles which emerge from the judgment of D
Justice Jeevan Reddy in Bommai, there is reason to hold that the
satisfaction of the President under Article 123(1) or of the Governor
under Article 213(1) is not immune from judicial review. The power of
promulgating ordinances is not an absolute entrustment but conditional
upon a satisfaction that circumstances exist rendering it necessary to
take immediate action. Undoubtedly, as this Court held in Indra Sawhney E
v. Union of lndia 31 the extent and scope of judicial scrutiny depends
upon the nature of the subject matter, the nature of the right affected,
the character of the legal and constitutional provisions involved and such
factors. Since the duty to arrive at the satisfaction rests in the President
and the Governors (though it is exercisable on the aid and advice of the
Council of Ministers), the Court must act with circumspection when the
F
satisfaction under Article 123 or Article 2 I 3 is challenged. The court will
not enquire into the adequacy, or sufficiency of the material before the
President or the Governor. The court will not interfere ifthere 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 G
power. This essentially involves a situation where the power has been
exercised to secure an oblique purpose. Jn exercising the power ofjudicial
review, the court must be mindful both of its inherent limitations as well
as of the entrustment of the power to the head of the executive who
" (1992) Supp. (3J sec 217 H
220 SUPREME COURT REPORTS [2017) 5 S.C.R.

A acts on the aid and advice of the Council of Ministers owing collective
responsibility to the elected 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
B judicial review cannot be supported as a matter of first principle or on
the basis of constitutional history.
J Re-promulgatio11
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,
c 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 transgress-ion 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
D 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,
E particularly a compact of governance, would not accept a state of
constitutional vacuum. The legislature is not always in session. Convening
it requires time. In the meantime, unforeseen events may arise which
need legislative redressal. An ordinance can be promulgated only when
the legislature is not in session. But the legislature has to be convened at
an interval of no later than six months. The life of an ordinance is restricted
F in time: six weeks after the reassembly of the legislature, it ceases to
operate. Even within this period, a resolution can be passed by the
legislature disapproving of the ordinance promulgated in its absence. In
such an event, an ordinance made by the Governor on the aid and advice
of the Cabinet ceases to operate. The constitutional conferment of a
G power to frame ordinances is in deviation of the normal mode oflegislation
which takes place through the elected bodies comprising of Parliament
and the state legislatures. Such a deviation is permitted by the Constitution
to enable the President and Governors to enact ordinances which have
the force and effect of law simply because of the existence of

H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 221
[DR. D. Y. CHANDRACHUD, J.]

circumstances which can brook no delay in the formulation oflegislation. A
In a parliamentary democracy, the government is responsible collectively
to the elected legislature. The subsistence of a government depends on
the continued confidence of the legislature. The urdinance making power
is subject to the control of the legislature over the executive. The
accountability of the executive to the legislature is symbolised by the
B
manner in which the Constitution has subjected the ordinance making
power to legislative authority. This, the Constitution achieves by the
requirements ofArticle 213. The first requirement defines the condition
subject to which an ordinance can be made. The second set of
requirements makes it mandatory that an ordinance has to be placed
before the House of the legislature. The third requirement specifies the c
tenure of an ordinance and empowers the legislature to shorten the
duration on the formulation of a legislative disapproval. Once the
legislature has reconvened after the promulgation of an ordinance, the
Constitution presupposes that it is for the legislative body in exercise of
its power to enact law,.to determine the need for the provisions which D
the ordinance incorporates and the expediency of enacting them into
· legislation. Once the legislature 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 E
continuation ofan 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- F
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 ifthere is an exceptional situation in
which the House of the legislature was unable to enact a legislation G
along the lines of an ordinance because of the pressure of legislative
work or due to reasons? Would the satisfaction of the Governor on the
need for immediate action be arrived at for an act of re-promulgation,
after a legislative session has intervened?
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222 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 44. Re-promulgation of ordinances is constitutionally impermissible
since it represents an effort to overreach the legislative body which is a
primary source oflaw making authority in a parliamentary democracy.
Re-promulgation defeats the constitutional scheme under which a limited
power to frame ordinances has been conferred upon the President and
the Governors. The danger of re-promulgation lies in the threat which it
B
poses to the sovereignty of Parliament and the state legislatures which
have been constituted as primary law givers under the Constitution. Open
legislative debate and discussion provides sunshine which separates
secrecy of ordinance making from transparent and accountable
governance through law making.
c J.2 DCWadhwa
45. The judgment of the Constitution Bench in DC Wadhwa v.
State of Bihar32 held that the re-promulgation of ordinances by the
State ofBihar constituted a fraud on the Constitution. Adverting to the
scheme of the Constitution, the Constitution Bench observed thus:
D
"6 .... The primary law making authority under the Constitution is
the legislature and not the executive but it is possible that when
the legislature is not in session circumstances may arise which
render it is necessary, to take immediate action and in such a case
in order that public interest may not suffer by reason of the inability
E of the legislature to make law to deal with the emergent situation,
the Governor is vested with the power to promulgate ordinances.
But every ordinance promulgated by the Governor must be placed
before the legislature and it would cease to operate at the expiration
of six weeks from the reassembly of the legislature or if before
F the expiration of that period a resolution disapproving it is passed
by the Legislative Assembly and agreed to by the Legislative
Council, if any. The object of this provision is that since the power
conferred on the Governor to issue ordinances is an emergent
power exercisable when the legislature is not in session, an
ordinance promulgated by the Governor to deal with a situation
G which requires immediate action and which cannot wait until the
legislature reassembles, must necessarily have a limited life .... "
"The power to promulgate an ordinance is essentially a power to
be used to meet an extraordinary situation and it cannot be allowed
H "(I 987) 1 sec 378
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 223
[DR. D. Y. CHANDRACHUD, J.]

to be "perverted to serve political ends". It is contrary to all ·A
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
B
ordinance shall cease to operate on the expiration of six weeks
from the date of assembling of the legislature. The Constitution-
makers expected that ifthe 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. c
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 ifthe executive were permitted
to continue the provisions of an ordinance in force by adopting the D
methodology of repromulgation without submitting to the voice of
the legislature, it would be nothing short of Susurpation by the
executive of the law-making function of the legislature. The
executive cannot by taking resort to an emergency power
exercisable by it only when the legislature is not in session, take
over the law-making function of the legislature. That would be E
clearly subverting the democratic process which lies at the core
of our constitutional scheme, for then the people would be governed
not by the laws made by the legislature as provided in the
Constitution but by laws made by the executive." (Id at p. 392)
The re-promulgation of ordinances was held to be a colourable exercise F
of power. The Constitution Bench held that the executive in the State of
Bihar had almost taken over the role of the legislature in making laws,
not for a limited period but for years together in disregard of constitutional
limitations. This Court warned that there must not be an ordinance raj in
the country :
G
"6 ...... When the constitutional provision stipulates that an
ordinance promulgated by the Governor to meet an emergent
situation shall cease to be in operation at the expiration of six
weeks from the reassembly of the legislature and the government
if it wishes the provisions of the ordinance to be continued in
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224 SUPREME COURT REPORTS [2017] 5 S.C.R.

A force beyond the period of six weeks has to go before the legislature
which is the constitutional authority entrusted with the law-making
function, it would most certainly be a colourable exercise of power
for the government to ignore the legislature and to repromulgate
the ordinance and thus to continue to regulate the life and liberty
of the citizens through ordinance made by the executive." (Id at
B
p. 394)
The limitation of the decision in D C Wadhwa is that having spelt out
constitutional doctrine, the Constitution Bench ended only with a 'hope
and trust' that law making through re-promulgated ordinances would not
become the norm. That trust has been belied by the succession of re-
c promulgated ordinances in this case. The ultimate direction was to set
aside one ordinance on intermediate education, which still held the field.
D C Wadhwa did not address itself to the legal status of action taken
under an ordinance which has lapsed on the expiry of its tenure or on
being disapproved. Does action initiated under an ordinance survive the
D 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
E the legislature. The Oxford English dictionary defines the expression
"cease" as 33 : "to stop, give over, discontinue, desist; to come to the
end."P Ramanatha Aiyar's, The Major Law Lexicon34 defines the
expression "ceas1:" to mean "discontinue or put an end to". Justice C
K Thakker's Encyclopaedic Law Lexicon 35 defines the word
F "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 Dictionary36 •
47. In a judgment of a Division Bench of the Andhra Pradesh
High Court in Mahanat Narayan Dessjivaru v. State of Andhra 37 , it
G was held that once a scheme and a sanad were no longer operative, the
rights, if any, accruing there from were extinguished. There was no
33
The Oxford English Dictionary (TI Edition): Clarendon Press, pg. 1014
34
The Major Law Lexicon (IV Edn. Pg. 1053)
35 Ashoka Law House, New Delhi (india) pg. 879
36
XthEdn. Pg. 268
37 AIR (1959) AP 471
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 225
[DR. D. Y. CHANDRACHUD, J.]

scope for importing any notion of suspension into that expression. A A
discontinuation took effect "once for all 38 ".
48. The expression "cease to operate" in Article 213(2)(a) is
attracted in two situations. The first is where a period of six weeks has
expired since the reassembling of the legislature. The second situation is
where a resolution has been passed by the legislature disapproving of an B
ordinance. Apart from these two situations that are contemplated by
sub-clause (a), sub-clause (b) contemplates that an ordinance may be
withdrawn at any time by the Governor. Upon its withdrawal the ordinance
would cease to operate as well.
49. The expression "disapproval" is defined in P Ramanatha c
Aiyar's Law Lexicon (supra) as being sometimes used in the sense of
formally refusing a sanction or annulling in consequence of the feeling
of disapprobation. Black's Law Dictionary 39 defines disapproval as "a
negative decision or attitude towards someone or something."
50. The issue before the court is of the consequence of an ordinance D
terminating on the expiry of a period of six weeks or, within that period,
on a disapproval by the legislature. The constitutional provision states
that in both situations the ordinance ceases to operate. Where an
ordinance has ceased to operate, would it result ipso Jure in a revival of
the state of affairs which existed before the ordinance was promulgated? E
Would the legal effects created by the ordinance stand obliterated as a
matter oflaw upon the lapsing of an ordinance or passing of a resolution
of disapproval? There are two constructions which need to be analysed.
Each of them lies at two opposing ends. At one end of the spectrum is
the view that once the legislature has expressed its disapproval by a
resolution, the state ofaffairs which the ordinance brought about stands F
dissolved and that which existed on the eve of the ordinan,ce stands
revived. In this view, disapproval amounts to an obliteration of the effect
of all that had transpired in the meantime. At the other end of the spectrum
is the view that an ordinance upon being promulgated has the force and
effect of a law enacted by the legislature. Hence, the lapsing of its term G
(on the expiry of six weeks or the passing of a resolution 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

" Id at para 28, pg. 474
" I OthEdn. Pg. 268 H
226 SUPREME COURT REPORTS (2017) 5 S.C.R.

A 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.
B
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,40 an ordinance was
promulgated by the Governor of East Punjab under Section 88 of the
Government of India Act, I 935, for the registration of land claims of
c 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 under the Act on the ground that his claim had been
D found to be false and no land in fact belonged to him in West Pakistan.
The respondent was convicted of an offence under the Act and sentenced
to imprisonment. The District Magistrate considering the sentence to be
inadequate, referred the case to the High Court. The respondent raised
a preliminary objection on the ground that the offence had been committed
against the ordinance before the Act had come in to being and the
E prosecution was commenced long after the ordinance had come to an
end. This contention was accepted by a Division Bench of the High
Court which set aside the conviction and sentence. The High Court held
that Section 6 of the General Clauses Act is attracted only when an Act
is repealed simpliciter but not when a repeal is followed by a re-
F enactment. The repealing act, it was held, did not provide that an offence
which was committed when the ordinance was in force could be punished
after its repeal. In appeal, this Court noted in a decision of three Judges
that the prosecution was initiated against the respondent not under the
ordinance but under the provisions of the Act. The offence was committed
when the Act was not in force. The court held that no person could be
G prosecuted or punished under a law which came into existence subsequent
to the commission of an offence. But the issue which still survived was
whether the respondent could be prosecuted and punished under the
ordinance after it was repealed. This Court observed that :

40
H AIR (1955) SC 84
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 227
[DR. D. Y. CHANDRACHUD, J.]

"8 ..... Whenever there is a repeal of an enactment, the A
consequences laid down in Section 6 of the General Clauses Act
will follow unless, as the section itself says, a different intention
appears. In the case of a simple repeal there is scarcely any room
for expression of a contrary opinion. But when the repeal is
followed by fresh legislation on the same subject we would B
undoubtedly have to look to the provisions of the new Act, but
only for the purpose of determining whether they indicate a different
intention. The line of enquiry would be, not whether the new Act
expressly keeps alive old rights and liabilities but whether it
manifests an intention to destroy them. We cannot therefore
subscribe to the broad proposition that Section 6 of the General C
Clauses Act is ruled out when there is repeal of an enactment
followed by a fresh legislation."
The offence committed 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 D
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 reqaired
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 E
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 ..... Ifwe are to hold that the penal provisions contained in the
Act cannot be attracted in case of a claim filed under the Ordinance, F
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 provisions of Sections 47 and 8 make it apparent
that it was not the intention of the Legislature that the rights and G
liabilities in respect of claims filed under the Ordinance shall be
extinguished on the passing of the Act, and this is sufficient for
holding that the present case would attract the operation of Section
6 of the General Clauses Act."

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228 SUPREME COURT REPORTS [2017] 5 S.C.R.

A The conviction and sentence were restored and the judgment of the
High Court was set aside (enhancement was also refused). The decision
in Mohar Singh involved a case where an ordinance (under which a
false claim had been filed) was repealed by an Act of the legislature.
The Act was interpreted to mean that the claim which was filed under
the ordinance would be reckoned as a claim under the Act. Once this
B
was so, rights and liabilities in respect of claims filed under the ordinance
were held not to be extinguished despite repeal.
52. The judgment in Mohar Singh drew sustenance from the
provisions of Section 6 of the General Clauses Act. This Court held that
when an enactment is repealed, the consequences envisaged in Section
c 6 of the General Clauses Act will follow unless a contrary iatention
appears. This principle is not inapplicable merely because a repeal is
followed by a fresh enactment. The court found as a matter of statutory
construction that the rights and liabilities under an ordinance which had
been repealed did not stand extinguished on the enactment of a fresh
D legislation.
53. Section 6 of the General Clauses Act provides as follows:
"Section 6. Where this Act or any Central Act or regulation made
after the commencement of this Act, repeals any enactment
hitherto made or hereafter to be made, then, unless a different
E intention appears, the repeal shall not-

***
(c) affect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed; or
F (d) affect any penalty, forfeiture or punishment incmTed in respect
of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, penalty, forfeiture
or punishment as aforesaid''.
G 54. Section 6 in its terms applies only to a repeal. An ordinance
ceases to have effect six weeks from the date on which the legislature
reassembles (or upon the passing of a legislative resolution disapproving
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
H a legislation results from a positive or affirmative act of the legislative
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 229
[DR. D. Y. CHANDRACHUD, J.]

body based on its determination that the law is no longer required. Repeal A
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
B
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 Bose41 , elections
to a municipality were set aside by the High Court on a defect in the
c
publication of the electoral roll. The Governor ofOrissa promulgated an
ordinance by which the elections were validated together with the
electoral rolls. A Bill was moved in the state legislature for enacting a
law in terms of the provisions of the ordinance but was defeated by a
majority of votes. The State ofOrissa filed an appeal before this Court D
against the decision of the High Court striking down material provisions
of the ordinance. Before this Court, it was urged on behalf of the
respondent that the ordinance was in the nature of a temporary statute
which was bound to lapse after the expiration of the prescribed period.
It was urged that after the ordinance had lapsed, the invalidity cf the
elections which it had cured stood revived. It was in the above background E
that this Court addressed itself to the question as to whether a lapse of
the ordinance affected the validation of the elections under it. Justice
Gajendragadkar, writing the opinion of a Constitution Bench held that
the general rule in regard to a temporary statute is that in the absence of
a special provision to the contrary, proceedings taken against a person F
under it will terminate when the statute expires. That is why the legislature
adopts a savings provision similar to Section 6 of the General Clauses
Act. But in the view of the court, it would not to be open to the ordinance
making authority to adopt such a course because of the limitation imposed
by Article 213(2)(a). The Constitution Bench relied upon three English
judgments: Wicks v. Director of Public Prosecutions 42 ; Warren v. G
Windle 43 ; and Steavenson v. Oliver44 .
41 (1962) Supp. (2) SCR 380
42 (1947) A.C. 362
43
(1803) 3 East 205, 211-212: 102 E.R. (K.B.) 578
44 151E.R.1024, 1026-1027
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230 SUPREME COURT REPORTS [2017] 5 S.C.R.

A Having adverted to these English decisions, the Constitution Bench held
thus:
"21.. .. .In our opinion, what the effect of the expiration of a
temporary Act would be must depend upon the nature of the right
or obligation resulting from the provisions of the temporary Act
B and upon their character whether the said right and liability are
enduring or not."
The 'enduring rights' theory which had been applied in English decisions
to temporary statutes - was thus brought in while construing the effect
of an ordinance which has ceased to operate. In the view of the
Constitution Bench :
c
"21 .... Therefore, in considering the effect of the expiration ofa
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
D 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
E 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.
F 56. This reasoning was followed by a Constitution Bench in T
Venkata Reddy v. State of Andhra Pradesh 4'. In that case, an
ordinance was promulgated by the Governor ofAndhra 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
G
legislature not having passed an Act in its place) the posts which were
abolished would stand revived. The Constitution Bench held that :
"14 ...... An Ordinance passed either under Article 123 or under
Article 213 of the Constitution stands on the same footing. When
H "(1985) 3 sec 198
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 231
[DR. D. Y. CHANDRACHUD, J.]

the Constitution says that the Ordinance-making power is legislative A
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." (Id at p. 211)
This Court held that an ordinance is not rendered void at its B
commencement merely because it has been disapproved by the
legislature:
"19 .... .It is seen that Article 213 of the Constitution does not say
that the Ordinance shall be void from the commencement on the
State Legislature disapproving it. It says that it shall cease to c
operate. It only means that it should be treated as being effective
till it ceases to operate on the happening of the events mentioned
in clause (2) of Article 213." (Id at p. 214)
The abolition of the posts of part-time village officer was held to be an
established fact. If the legislature intended to bring back the post as it D
existed before the promulgation of the ordinance, the court held that a
law would have to be enacted by the state legislature :
"20. We do not, however, mean to say here that Parliament or the
State Legislature is powerless to bring into existence the same
state of affairs as they existed before an Ordinance was p[:ssed E
even though they may be completed and closed matters under the
Ordinance. That can be achieved by passing an express law
operating retrospectively to the said effect, of course, subject to
the other constitutional limitations. A mere disapproval by
Parliament or the State Legislature of an Ordinance cannot,
however, revive closed or completed transactions." (Id at p. 216) F
57. The basic premise of the decision in Bhupendra Kumar
Bose is that the effects of an ordinance can be assessed on the basis of
the same yardstick that applies to a temporary enactment. 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 G
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. Hence, it lies perfectly
within the realm and competence of the legislature which enacts a
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232 SUPREME COURT REPORTS [2017] 5 S.C.R.

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 tempora1y 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
B
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
c 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
enact a law cannot be equated with a temporary enactment. The basic
error, if we may say so with respect, in the judgment in Bhupendra
Kumar Bose lies in its placing an ordinance on the same pedestal as a
D
temporary enactment. The judgement in T Venkata Reddy follows the
rationale of Bhupendra Kumar Bose. Having done that, the
Constitution Bench proceeded to hold that if Parliament or the state
legislatures intend to revive the state of affairs which existed before the
ordinance was promulgated, it would have to bring a law which has
E retrospective effect. A disapproval by the legislature, it was held cannot
revive completed transactions. The effect of the judgment in TVenkata
Reddy is to place ordinances in a privileged position and to disregard
the supremacy of Parliament. By way of an illustration, take a situation
where an ordinance has overridden rights created by a duly enacted
legislation. If the ordinance lapses, the decision in T Venkata Reddy
F
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 oflegislation in relation to ordinance making
powers. The basis and foundation of the two Constitution Bench decisions
G cannot be accepted as reflecting the true constitutional position.
58. What then is the effect upon rights, privileges, obligations or
liabilities which arise under an ordinance which ceases to operate? There
are two critical expressions in Article 213(2) which bear a close analysis.
The first is that an ordinance "shall have the same force and effect" as
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 233
[DR. D. Y. CHANDRACHUD, J.]

an act of the legislature while the second is that it "shall cease to operate" A
on the period of six weeks of the reassembling of the legislature or upon
a resolution of disapproval. The expression "shall have the same force
and effect" is prefaced by the words "an ordinance promulgated under
this article". In referring to an ordinance which is promulgated under
Article 213, the Constitution evidently conveys the meaning that in order
B
to have the same force and effect as a legislative enactment, the
ordinance must satisfy the requirements of ArtiC!e 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 c
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 D
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 E
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" will mean that all legal consequences that arose during the
F
tenure of the ordinance would stand obliterated. According to the second
construction, which is wider than the first, the consequence of an ordinance
having ceased to operate would relate back to the validity of an ordinance.
59. Now, one of the considerations that must be borne in mind is
that Article 213 has not made a specific provision forthe saving ofrights,
privileges, obligations or liabilities that have arisen under an ordinance G
which has since ceased to operate either upon the expiry of its term or
upon a resolution of disapproval. Significantly, there are other provisions
of the Constitution where, when it so intended, the Constitution has made
express provisions for the saving of rights or liabilities which arise under
H
234 SUPREME COURT REPORTS [2017] 5 S.C.R.

A a law. Under Article 352(4) every resolution for the proclamation of an
emergency has to be laid before each House of Parliament and will
"cease to operate" on the expiration of one month unless it has been
approved during that period by resolutions of both Houses of Parliament.
Under clause 5 ofArticle 352, a proclamation thus approved shall, unless
it is revoked, "cease to operate" on the expiration of a period of six
B
months. When a proclamation of emergency is in operation Parliament
is conferred with the power to make laws even with respect to matters
in the state list. A1iicle 358(1) provides that when a proclamation of
emergency is in force, nothing in Article 19 shall restrict the power of
the state as defined in Part III to make any law which the state but for
c the provisions of Part III would be competent to make. However any
law so made shall to the extent of its incompetency cease to have effect
as soon as the proclamation ceases to operate "except as respects things
done or omitted to be done before the law so ceases to have effect".
Similarly Article 359( 1) provides that during the operation of a
proclamation of emergency the President may declare that the right to
D
move a court for the enforcement of rights conferred by Part III (except
Articles 20 and 21) shall remain suspended. However, Article 359( lA)
provides that any law made shall to the extent of the incompetency with
Part III cease to have effect as soon as the order aforesaid ceases to
operate "except as respects things done or omitted to be done before
E the law so ceases to have effect".
60. The 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
F to operate after a proclamation of emergency is revoked, the Constitution
Bench has provided for an express saving clause in Articles 358( I) 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 ofArticle 19. But for it, a law which offends Article
19 would be void under Article 13. Once the proclamation ceases to
G 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( I )(b)
may declare that the powers of the legislature of the state shall be
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 235
[DR. D. Y. CHANDRACHUD, J.]

exercisable by or under the authority of Parliament. Every such A
proclamation is required to be laid before each House of Parliament and
will cease to operate on the expiration of two months, unless it has been
approved by resolutions of both Houses of I'arliament. Under Article
357, any law made by Parliament in exercise of the power of the state
legislature, which it would not have been competent to make but for a
B
proclamation under Article 356 shall continue in force even after the
cessation of the proclamation until it is altered or repealed or amended
by a competent legislature. This is a situation where the Constitution has
provided for the continuation of a law even after the cessation of a
proclamation.
62. Article 249 enables Parliament t6' legislate on matters
c
enumerated in the state list if the Council of States has declared by a
resolution supported by not less than two thirds of its members present
and voting that it is necessary or expedient in the national interest that
Parliament should make laws on a subject in the state list. Similarly,
under Article 250, Parliament is empowered, while a proclamation of D
emergency is in operation, to make laws with respect to any matter in
the state list. Article 249(3) and Article 250(2) however, stipulate that
the law enacted by Parliament shall cease to have effect on the expiration
of six months of the resolution. However, both Article 249(3) and Article
250(2) contain a savings clause as respects things done or omitted to be
done before the expiration of the period. Such a saving has been rendered E
necessary because Parliament has, in pursuance of a resolution under
Article 249, or under Article 250 during a proclamation of emergency,
enacted a law on a matter in the State List (which Parliament is not
otherwise competent to enact). Once the law ceases to have effect, the
framers considered it necessary to introduce a saving as respects things F
done under it. This was necessary because a law lacking in legislative
competence would be void, but for Articles 249,and 250.
63. In S R Bommai v. Union of lndia 46 ; Justice B P Jeevan
Reddy delivering a judgment on behalf of himself and Justice S C Agrawal
observed that the requirement of laying a proclamation under Article G
356 before both Houses of Parliament and the provision for its cessation
unless approved by a resolution passed by both Houses before the expiry
of two months "is conceived both as a check upon the power and as a
vindication of the principle of Parliamentary supremacy over the
"(1994) 3 sec 1
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236 SUPREME COURT REPORTS [2017] 5 S.C.R.

A executive". In the earlier decision in State of Rajasthan v. Union of
India47 , 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
B
have been dissolved do not revive. This view was disapproved in the
judgment of Justice Jeeven Reddy in SR 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
c 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) I SCR l] also holds that
such disapproval or non-approval does not revive the Legislative
D 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 emphasised, uses the
words "approved by resolutions of both Houses of Parliament".
The word "approval" means affirmation of the action by a higher
E or superior authority. In other words, the action of the President
has to be approved by Parliament. The expression "approval"
has an intrinsic meaning which cannot be ignored. Disapproval or
non-approval means that the Houses of Parliament are saying
that the President's action was not justified or warranted and that
F it shall no longer continue. In such a case, the Proclamation lapses,
i.e., ceases to be in operation at the end of two months - the
necessary consequence of which is the status quo ante revives.
To say that notwithstanding the disapproval or non-approval, the
status quo ante does not revive is to rob the concept of approval
of its content and meaning. Such a view renders the check
G provided by clause (3) ineffective and of no significance
whatsoever. The Executive would be telling Parliament: "I have
dismissed the Government. Now, whether you approve or
disapprove is of no consequence because the Government in no
event can be revived. The deed is done. You better approve it
H "< t977) 3 sec sn
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 237
[DR. D. Y. CHANDRACHUD, J.]

because you have practically no choice." We do not think that A
such a course is consistent with the principle of parliamentary
supremacy and parliamentary control over the Executive, the basic
premise of parliamentary supremacy. It would indeed mean
supremacy of the Executive over Parliament. The dismissal of a
Government under sub-clause (a) of clause (1) cannot also be
B
equated to the physical death of a living being. There is no
irrevocability about it. It is capable of being revived and it revives.
Legislative Assembly which may have been kept in suspended
animation also springs back to life. So far as the validity of the
acts done, orders passed and laws, if any, made during the period
of operation of the Proclamation is concerned, they would remain c
unaffected inasmuch as the disapproval or non-approval does not
render the Proclamation invalid with retrospective effect."(Id at
p.226)
Justice P B Sawant speaking on behalf of himself and Justice Kuldip
Singh held that : D
"There is no reason why the Council of Ministers and the
Legislative Assembly should not stand restored as a consequence
of the invalidation of the Proclamation, the same being the normal
legal effect of the invalid action." (Id at p. 122)
In this view, if a proclamation is held to be invalid then even though it is E
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 F
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 G
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.
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238 SUPREME COURT REPORTS [2017] 5 S.C .R.

A 64. The view which was adopted by this Court in State of
Rajasthan was reflected in the majority decision of Justices Y V
Chandrachud, Untwalia and Faz! Ali. That view posited that a
proclamation has a life of two months and the only effect of its non-
placement before Parliament is that it ceases after the expiry of two
months. Hence, it was held that disapproval of the proclamation by
B
Parliament would not result in a revival of the status quo ante. This
view in State of Rajasthan was overruled in S R Bommai. However,
at this stage, it may also be of significant to note that in the course of the
judgment Justice Chandrachud observed that there is a distinction between
Articles 356 and 123. In the case of the ordinance making power of the
c President under Article 123, it was observed that an ordinance could be
disapproved by a resolution of Parliament and would cease to operate 0

even before the prescribed period. However, under Article 356, a
proclamation had an assured life of two months. This was also noted in
the judgment of Justice Bhagwati. Be that as it may, the significance of
the nine Judge Bench decision in SR Bommai lies in its elucidation of
D
the consequences of a disapproval or non-approval of a proclamation by
Parliament. In such an event, it was held that disapproval or non-approval
amounts to its negation by Parliament; a statement, that the action of the
President was not justified or warranted and that it shall no longer
continue. The necessary consequence is that the status quo ante would
E revive. The contrary view in State of Rajasthan, would deprive
Parliament of its control and supremacy. The rationale of the decision of
the majority on this aspect is that if the status quo ante was not to
revive despite the disapproval or non-approval of a proclamation by
Parliament, parliamentary supremacy would give way to the supremacy
of the executive.
F
65. The Constitution has in its provisions used different phrases
including "repeal'', "void", "cease to have effect" and "cease to operate".
In Keshavan Madhava Menon v. State of Bombay48 , Justice Faz!
Ali in the course of his dissenting opinion noticed the use of these phrases
in the following observations:
G
"25. A reference to the Constitution will show that the framers
thereof have used the word "repeal" wherever necessary (see
Articles 252, 254, 357, 372 and 395). They have also used such
words as "invalid" (see Articles 245, 255 and 276), "cease to
H "(195l)SCR228
KRISHNA KUMAR sn.,;GH & ANR. v. STATE OF BIHAR 239
[DR. D. Y. CHANDRACHUD, J.]

have effect" (see Articles 358 and 372), "shall be inoperative", A
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 B
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." C
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 D
provision which would not be valid if enacted in an act of the legislature
of the state assented to by the Governor. Such a provision contained in
an ordinance is declared to be void by clause 3 of Article 213. Evidently,
when the framers wished to indicate that a provision of an ordinance
would be void in a certain eventuality, the Constitution has expressly
used that phrase. This would militate against equating the expression
E
"cease to operate" with the expression "void". Both have distinct
connotations. Particularly, where the same constitutional article has used
both phrases - 'cease to operate' (in clause 2) and 'void' in (clause 3)
one cannot be read to have the same meaning as the other.
66. An ordinance which has ceased to operate is not void. As an F
instrument, it is not still-born. During the tenure of the ordinance, it has
the same force and effect as a law enacted by the legislature.
67. Significantly, the expression "cease to operate" in Article
213(2)(a) applies both to an ordinance whose tenure expires after the
prescribed period as well as in relation to an ordinance which is G
disapproved by the legislature. The content of the expression c~nnot
hence mean two separate things in relation to the two situations. 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 H
240 SUPREME COURT REPORTS [2017] 5 S.C.R.

A will enure beyond the life of the ordinance. In deciding this issue, the
court must adopt an interpretation which fmihers the basic constitutional
premise oflegislative control over ordinances. The preservation of this
constitutional value is necessary for parliamentary democracy to survive
on the sure foundation of the rule oflaw and collective responsibility of
the executive to the legislature. The silences of the Constitution must be
B
imbued with substantive content by infusing them with a meaning which
enhances the rule oflaw. 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. The court's interpretation of the power to frame ordinances,
c which originates in the executive arm of governrnent, cannot be oblivious
to the basic notion that the primary form oflaw making power is through
the legislature. Hence, the interpretation which the court 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.
D
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
E 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
F 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 temporary act. That theory cannot be applied to the power to frame
ordinances. Acceptance of the doctrine of enduring rights in the context
G of an ordinance would lead to a situation where the exercise of power
by the Governor would survive in terms of the creation of rights and
privileges, obligations and liabilities on the hypothesis that these are of
an enduring character. The legislature may not have had an opportunity
to even discuss or debate the ordinance (where, as in the present case,
H none of the ordinances was laid before the legislature); an ordinance
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 241
[DR. D. Y. CHANDRACHUD, J.]

may have been specifically disapproved or may have ceased to operate A
upon the expiry of the prescribed period. The enduring rights theory
attributes a degree of permanence to the power to promulgate ordinances
in derogation of parliamentary control and supremacy. Any such
assumption in regard to the conferment of power would run contrary to
the principles which have been laid down in SR Bommai. The judgment
B
in T Venkata Reddy essentially follows the same logic but goes on to
hold that if Parliament intends to reverse matters which have been
completed under an ordinance, it would have to enact a specific law
with retrospective effect. This, in our view, reverses the constitutional
ordering in the regard to the exercise oflegislative power.
69. The issue which confronts itself before the court is whether
c
upon an ordinance ceasing to operate, either as a result of its disapproval
by the legislature or upon its expiry after the prescribed period of six
months of the assembling of the legislature, all consequences that have
ensued would necessarily stand effaced and obliterated. The judgment
of Justice Sujata Manohar in the referring order in the present case D
adverted to the ambiguity inherent in the expression "permanent effect"
and "rights of an enduring character". The Bench consisting of Justice
Sujata Manohar and Justice DP Wadhwa, being a bench of two learned
judges, was confronted with the binding effect of the decisions of the
two Constitution Benches in Bhupendra Kumar Bose and TVenkata
Reddy. Within the framework provided by the two binding precedents, E
Justice Sujata Manohar held that the effect of an ordinance can be
considered as permanent when it is irreversible or when it would be
"highly impractical or against public interest to reverse it". A three-fold
test has been laid down : the first is of the irreversibility of effect; the
second, the impracticality of reversing a consequence which has ensued F
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.
G
70. The judgment of Justice Sujata Manohar does indicate (as
one commentatoron the subject states), that the learned judge "is willing
to engage in some form of heightened scrutiny"49 • Yet, the three-fold
test of irreversibility, impracticality or public interest may, if broadly
49
Shubhankar Dam (Supra) (Id at page 151) H
242 SUPREME COURT REPORTS [2017) 5 S.C.R.

A 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 ii 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
B
contemplated. 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. Ultimately, it is
this element of public interest which would have guided the court in
c Bhupendra Kumar Bose in holding that the validation of an election
by an ordinance should not be set at naught (though the logic adopted by
the court was flawed). Bhupendra Kumar Bose also raises troubling
aspects independently on its facts because in that case a Bill which was
moved before the state legislature to incorporate provisions similar to
those of the ordinance was defeated. Be that as it may, in deciding to
D
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
E 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
F
material.
L Laying of ordinances before the legislature
71. Article 213(2)(a) requires an ordinance to be laid before the
state legislature. Asimilar requirement is contained in Article 123(2)(a).
G Neither Article 123 nor Article 213 specifically provide for when an
ordinance should be laid before the legislature upon its reassembling.
The position in relation to Parliament is set out by Sub hash C Kashyap,
in his work titled "Parliamentary Procedure- the law, privileges, practice
and precedents 50." Rule 71 which the author extracts is as follows :

H 50
Universal Law Publishing Co. Pvt. Ltd (Id at page 16, 17)
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 243
[DR. D. Y. CHANDRACHUD, J.]

"Rule? I. Statement regarding Ordinances - ( 1) Whenever a Bill A
seeking to replace an Ordinance with or without modification is
introduced in the House, there shall be placed before the House
along with the Bill a statement explaining the circumstances which
had necessitated immediate legislation by Ordinance.
(2) Whenever an Ordinance, which embodies wholly or partly or B
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)
c
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.
D
72. The Rules of Procedure and Conduct of Business in the Bihar
Vidhan Sabha51 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 (that being the period during which the ordinance will E
continue to operate) any member may move a resolution approving the
ordinance with a notice of three days.
73. The importance of tabling an ordinance before the legislature
is thafit enables the legislature to act in furtherance of its constitutional
power of supervision and control. The legislature is entitled to determine F
whether an ordinance should be disapproved. The need for and
expediency of issuing an ordinance can be discussed and debated by the
legislature. The Government which is accountable to and bears collective
responsibility towards the legislature may bring a Bill along the lines of
the ordinance (or with such modifications as are considered appropriate) G
before the legislature in which event, the Bill can be debated upon and
discussed before a vote is taken. The ordinance making power is not a
parallel source oflegislation. Promulgated at a time when the legislature
is not in session, the constitutional process involved postulates an
" I 0th Edition Bihar Vidhan Sabha Patna
H
244 SUPREME COURT REPORTS [2017] 5 S.C.R.

A intersection between the exercise of the ordinance making power with
the constitutional authority of the legislature over an ordinance which
has been promulgated by the President or the Governor.
74. The failure to place an ordinance before the legislature
constitutes a serious infraction of a constitutional obligation which the
B executive has to discharge by placing the ordinance before the legislature.
The laying of an ordinance facilitates the constitutional process by which
the legislature is enabled to exercise its control. Failure to lay an ordinance
before the legislature amounts to an abuse of the constitutional process
and is a serious dereliction of the constitutional obligation. In the case of
delegated legislation, Parliamentary or state enactments may provide a
c requirement oflaying subordinate legislation before the legislature. It is
well-settled that a requirement of merely laying subordinate legislation
before the House of the legislature is directory. But where a disapproval
of subordinate legislation is contemplated, such a requirement is
mandatory. In Quarry Owners' Association v. State of Bihar52 this
D Court held:
"45 ..... Laying before the Houses of Parliament is done in three
different ways. Laying of any rule may be subject to any negative
resolution within a specified period or may be subject to its
confirmation. This is spoken of as negative and positive resolution
respectively. Third may be mere laying before the House. In the
E 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
F 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
G 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)
" (2000) s sec 655
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 245
[DR. D. Y. CHANDRACHUD, J.]

75. The requirement of an ordinance being laid before the A
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 is subordinate to and not a stream which runs parallel to
the power of law making which vests in the state legislatures and
Parliament. Any breach of the constitutional requirement of laying an
B
ordinance before the legislature has to be looked upon with grave
constitutional disfavour. The Constitution uses the express "cease to
operate" in the context of a culmination of a duration of six weeks of the
reassembling of the legislature or as a result ofa resolution of disapproval.
The framers introduced a mandatory requirement of an ordinance being
laid before the legislature upon which it would have the same force and c
effect as a law enacted by the legislature, subject the condition that it
would cease to operate upon the expiry of a period of six weeks of the
reassembling of the legislature or earlier, if a resolution of disapproval
were to be passed. The 'cease to operate' provision is hence founded
on the fundamental requirement of an ordinance being placed before the
D
legislature. If the executive has failed to comply with its unconditional
obligation to place the ordinance before the legislature, the deeming fiction
attributing to the ordinance the same force and effect as a law enacted
by the legislature would not come into existence. An ordinance which
has not been placed before the legislature at all cannot have the same
force and effect as a law enacted and would be of no consequence E
whatsoever.
The Constitution has not made a specific provision with regard to a
situation where an ordinance is not placed before a legislature at all.
Such an eventuality cannot be equated to a situation where an ordinance
lapses after the prescribed period or is disapproved. The mandate that F
the ordinance will cease to operate applies to those two situations. Not
placing an ordinance at all before the legislature is an abuse of
constitutional process, a failure to comply with a constitutional obligation.
A government which has failed to comply with its constitutional duty and
overreached the legislature cannot legitimately assert that the ordinance
which it has failed to place at all is valid till it ceases to operate. An G
edifice of rights and obligations cannot be built in a constitutional order
on acts which amount to a fraud on power. This will be destructive of
the rule oflaw. Once an ordinance has been placed before the legislature,
the constitutional fiction by which it has the same force and effect as a
H
246 SUPREME COURT REPORTS [2017] 5 S.C.R.

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
B
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
c
76. The judgment of the Constitution Bench in DC 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
D exercise of power for government to ignore the legislature and to re-
promulgate ordinances. Perhaps there is justification in the critique of
the judgment that the Constitution Bench ultimately left the matter (having
invalidated one of the Bihar ordinances which still held the field) to an
expression of hope which read thus :
E "we hope and trust that such practice shall not be continued in the
future and that whenever an ordinance is made and the government
wishes to continue the provisions of the ordinance in force after
the reassembling of the legislature, a Bill will be brought before
the legislature for enacting those provisions into an act. There
F must not be Ordinance-Raj in the country."
77. The Constitution Bench carved out an exception where an
ordinance may have to be re-promulgated by the Governor where it has
not been possible for Government to introduce and push through in the
legislature a Bill containing the same provisions as an ordinance because
G of an excess of legislative business for a particular session. This
exception has been criticized on the ground that however pressing is the
existing legislative business, it lies in the discretion of the government to
seek an extension of the legislative session for converting an ordinance
into an enactment of the legislature. Moreover, it has been questioned as
to whether a re-promoulgated ordinance would meet the basic
H
KRISHNA KUMAR ~; \GH & ANR. v. STATE OF BIHAR 247
[DR. D. Y. CHANDRACHUD, J.]

constitutional requirement of the existence of circumstances bearing upon A
the satisfaction of the Governor on the need to take immediate action.
Be that as it may, it is not the case of the State of Bihar in the present
case that there was any reason or justification to continue with a chain
of ordinances nor is there any material before the court to indicate
exceptional circumstances involving a constitutional necessity.
B
78. The two learned judges (Justice Sujata Manohar and Justice
Wadhwa) agreed in coming to the conclusion that the ordinances which
were issued after the first would amount to a fraud on constitutional
power. They however differed in regard to the validity of the first
ordinance. Justice Sujata Manohar held that all the ordinances formed a
part of a chain of acts designed to nullify the scheme of Article 213. In
c
this view, each of the ordinances took colour from one another,
notwithstanding some departures in the scheme of the fourth and
subsequent ordinances. The entire exercise was held to be a fraud on
the power conferred by Article 213 since the executive had no intention
of placing any of the ordinances before the legislature. Justice Wadhwa D
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 E
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 ofa temporary statute. Moreover as we have indicated, F
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
mandatory constitutional requirement. All the ordinances formed a part
of one composite scheme by which the Governor ofBihar promulgated G
and re-promulgated ordinances. That chain or link commenced from the
promulgation of the first ordinance. Hence, in the very nature of things it
would not be possible to segregate the first ordinance since it forms an
intrinsic part of a chain or link of ordinances each of which and which
H
248 SUPREME COURT REPORTS (2017] 5 S.C.R.

A together constitute a fraud on constitutional power.
N Conclusion
80. In summation, the conclusions in this Judgment are as follows:
(i) The power which has been conferred upon the President under
B Article 123 and the Governor under Article 213 is legislative in character.
The power is conditional in nature: it can be exercised only when the
legislature is not in session and subject to the satisfaction of the President
or, as the case may be, of the Governor that circumstances exist which
render it necessary to take immediate action;

c (ii) An Ordinance which is promulgated under Article 123 or Article
213 has the same force and effect as a law enacted by the legislature
but it must (i) be laid 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;
D
(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
E
or the Governor into a parallel source of law making or an independent
legislative authority;
(v) Consistent with the principle oflegislative 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
F
Council of Ministers which owes collective responsibility to the
legislature;
(vi) The requirement oflaying 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
G mandatory because the legislature has to determine: (a) The need for,
validity of and expediency to promulgate an ordinance; (b) Whether 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);
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAk 249
[DR. D. Y. CHANDRACHUD, J.]

(vii) The failure to comply with the requirement of laying an A
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 DC Wadhwa; B
(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, c
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 the reassembling of the legislature or upon a resolution of disapproval
being passed, the ordinance is rendered void ab initio. Both Articles D
123 and 213 contain a distinct provision setting out the circumstances in
which an ordinance shall be void. An ordinance is void in a situation
where it makes a provision which Parliament would not be competent to
enact (Article 123(3)) or which makes a provision which would not be a
valid if enacted in an act of the legislature of the state assented to by the E
Governor (Article 213(3)). The framers having used the expressions
"cease to operate" and "void" separately in the same provision, they
cannot convey the same meaning;
(x) The theory of enduring rights which has been laid down in the
judgment in Bhupendra Kumar Bose and followed in T Venkata F
Reddy by the Constitution Bench is based on the analogy of a temporary
enactment. There is a basic difference between an ordinance and a
temporary enactment. These decisions of the Constitution Bench which
have accepted the notion of enduring rights which will survive an
ordinance which has ceased to operate do not lay down the correct
position. The judgments are also no longer good law in view of the G
decision in S R Bommai;
(xi) No express provision has been made in Article 123 and Article
213 for saving of rights, privileges, obligations and liabilities which have
arisen under an ordinance which has ceased to operate. Such provisions
H
250 SUPREME COURT REPORTS [20171 5 S.C.R.

A are however specifically contained in other aiiicles of the Constitution
such as 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 oflaw;

B (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.
c 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
D articles. The test is whether the satisfaction is based on some relevant
material. The court in the exercise ofits power ofjudicial 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
E 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
F legislature and were re-promulgated in violation of the bindingjudgment
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 be made from any of the employees of the salaries which have
G been paid during the tenure of the ordinances in pursuance of the directions
contained in the judgment of the High Court.
82. The reference is answered in these terms.
83. We acknowledge and value the able assistance rendered by
learned counsel who appeared before the court :
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 251

Shri Salman Khurshid, Shri Rakesh Dwivedi, Shri Amarendra Saran, A
Shri Mukesh Giri, Shri CU Singh, senior advocates and Shri Ranjit Kumar,
Solicitor General. Their industry and research have provided us valuable
inputs.
MADAN B. LOKUR, J.
1. Having carefully read the erudite judgment prepared by brother B
Chandrachud, I regret my inability to agree that laying an Ordinance
promulgated by the Governor of a State before the State Legislature is
mandatory under Article 213(2) of the Constitution and the failure to lay
an Ordinance before the State Legislature results in the Ordinance not
having the force and effect as a law enacted and would be of no c
consequence whatsoever. In my opinion, it is not mandatory under Article
213(2) of the Constitution to lay an Ordinance before the Legislative
Assembly of the State Legislature, nor would the failure to do so result
in the Ordinance not having the force and effect as an enacted law or
being of no consequence whatsoever.
D
2. Further, in my opinion, an Ordinance cannot create an enduring
or irreversible right in a citizen. Consequently and with respect, a contrary
view expressed by this Court in State of Orissa v. Bltupendra Kumar
Bose 1 and T. Venkata Reddy v. State ofAndltra Pradeslt2 requires to.
be overruled. In overruling these decisions, I agree with brother
Chandrachud though my reasons are different. E

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 F
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 G
of the State ofBihar, 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
' 1962 Supp (2) SCR 380 - Bench of 5 Judges
2 ( 1985) 3 SCC 198- Bench of 5 Judges
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252 SUPREME COURT REPORTS [2017] 5 S.C.R.

A and the benefits obtained by the employees under these three Ordinances
are justified. However, these three Ordinances do not confer any enduring
or irreversible right or benefits on the employees. The promulgation of
the fourth and subsequent Ordinances has not been adequately justified
by the State of Bihar in spite of a specific challenge by the employees
and therefore they were rightly struck down by the High Court. Therefore,
B
I partly agree with brother Chandrachud on the issue of the validity of
the Ordinances.
5. The facts relating to these appeals have been detailed by brother
Chandrachud and it is not necessary to repeat them. All that need be
said is that in terms of Article 154 of the Constitution the executive
C power of the State shall be vested in the Governor of the State and shall
be exercised by him either directly or through officers subordinate to
him in accordance with the Constitution. In terms of Article 168 of the
Constitution every State shall have a Legislature which consists of the
Governor of the State and in the case of some States, two Houses and in
D the other States, one House. Where there are two Houses of the
Legislature, one shall be known as the Legislative Council and the other
shall be known as the Legislative Assembly. We are concerned with the
State ofBihar which has two Houses of the Legislature.
Promulgation of an Ordinance
E 6.Article 213 of the Constitution provides that when the Governor
of the State 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." However,
this is subject to the exception that the Governor cannot promulgate an
F Ordinance when both Houses of the Legislature are in session. An
Ordinance is promulgated by the Governor of a State on the aid and
advice of his Council of Ministers and is in exercise of his legislative
power. An Ordinance has the "same force and effect as an Act of the
Legislature of the State assented to by the Governor" in terms ofArticle
213(2) of the Constitution. Clause (a) ofArticle 213(2) of the Constitution
G provides that every such Ordinance "shall be laid before the Legislative
Assembly of the State, or where there is a Legislative Council in the
State, before both the Houses, and shall cease to operate at the expiration
of six weeks from the reassembly of the Legislature, or if before the
expiration of that period a resolution disapproving it is passed by the
H Legislative Assembly and agreed to by the Legislative Council, if any,
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 253
[MADAN B. LOKUR, J.]

upon the passing of the resolution or, as the case may be, on the resolution · A
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 concernedwith it.
7. There is no dispute in these appeals that the Governor ofBihar B
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 c
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 Ordinance - that is within the domain of the D
Executive. The State Legislature keeps a check on the exercise of power
by the Executive through the Governor. This is by a Resolution
disapproving an Ordinance. The State Legislature is expected to ensure
thatthe separation of powers between the Executive and the Legislature
is maintained and is also expected to ensure that the Executive does not E
transgress the constitutional boundary and encroach on t?e powers of
the Legislature while requiring the Governor to promulgate an Ordinance.
9. Article 213 of the Constitution does not require the Legislature
to approve an Ordinance -Article 213(2) of the Constitution refers only
to a Resolution disapproving an Ordinance. If an Ordinance is disapproved F
by a Resolution of the State Legislature, it ceases to operate as provided
in Article 2 l 3(2)(a) of the Constitution. If an Ordinance is not
disapproved, it does not lead to any conclusion that it has been approved
- it only means that the Ordinance has not been disapproved by the
State Legislature, nothing more and nothing less.
G
10. The concept of disapproval of an Ordinance by a Resolution
as mentioned inArticle 213(2)(a) of the Constitution may be contrasted
with Article 352(4) of the Constitution where a positive act of approval
of a Proclamation issued under Article 352( 1) of the Constitution is
necessary. Similarly, a positive act of approval of a Proclamation issued
H
254 SUPREME COURT REPORTS [2017] 5 S.C.R.

A under Article 356(1) of the Constitution is necessary under Article 356(3)
of the Constitution. Attention may also be drawn to a Proclamation issued
under Article 360 of the Constitution which requires approval under
Article 360(2) of the Constitution. There is therefore a conscious
distinction made in the Constitution between disapproval of an Ordinance
(for example) and approval ofa Proclamation (for example) and this
B
distinction cannot be glossed over. It is for this reason that I am of the
view that only disapproval of an Ordinance is postulated by Article
213(2)(a) of the Constitution and approval of an Ordinance is not
postulated by Article 213(2)(a) of the Constitution.
11. The expression of disapproval of an Ordinance could be at the
c instance of any one Member of the Legislative Assembly in view of
Rule 140 of the Rules of Procedure and Conduct of Business in the
Bihar Vidhan Sabha. 3 If the State Legislature disapproves an Ordinance
by a Resolution, it ceases to operate. One of the important issues before
us is whether after an Ordinance ceases to operate, do concluded actions
D 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.
E
(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 ifit is not so laid?
F
(b) Secondly, the Executive may, in view of the provisions of
Article 2 l 3(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?
G 3 140. Discussion on Governor's Ordinance:- As soon as possible after the Governor
has promulgated an Ordinance under clause (I) of Article 213 .of the Constitution,
printed copies of such Ordinance shall be made available by the Secretary to the
members of the Assembly. Within six weeks from the re-assembly of the Assembly,
any member may, after giving three clear days' notice to the Secretary, move a resolution
approving the Ordinance; and if such resolution is..rassed, it shall be forwarded to the
H other House with a message asking for its concurrence.
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 255
[MADAN B. LOKUR, J.]

(c) Thirdly, the Executive may, in accordance with Article A
213(2)(a) of the Constitution lay an Ordinance before the Legislative
Assembly of the State Legislature. What could happen thereafter?
I propose to deal with each possible scenario.
First scenario
B
13, As far as the first scenario is concerned, namely, the
Executive not laying an Ordinance before the Legislative Assembly,
brother Chandrachud has taken the view that on a textual reading of
Article 213(2)(a) of the Constitution an Ordinance promulgated by the
Governor shall mandatorily be laid before the State Legislature. With
respect, I am unable to subscribe to this view. C
14. Article 213(2)( a) of the Constitution provides that an Ordinance ceases
to operate at the expiration of six weeks of reassembly of the State
Legislature or if before the expiration of that period a Resolution
disapproving it is passed by the State Legislature. An Ordinance ceasing
to operate at the expiration of six weeks of reassembly .of the State D
Legislature is not related or referable to laying the Ordinance before the
State Legislature. Therefore, whether an Ordinance is laid before the
State Legislature or not, the provisions of Article 213(2)(a) of the
Constitution kick in and the Ordinance will cease to operate at the
expiration of six weeks of reassembly of the State Legislature. On a E
textual interpretation ofArticle 2 l 3(2)(a) of the Constitution, not laying
an Ordinance before the Legislative Assembly has only one consequence,
which is that the Ordinance will cease to operate at the expiration of six
weeks of reassembly of the State Legislature. While I agree that not
laying an Ordinance before the State Legislature on its reassembly would
be extremely unfortunate, morally and ethically, but that does not make F
it mandatory for the Ordinance to be so laid.
15. In this context, does the Constitution provide for any
consequence other than the Ordinance ceasing to operate? In my opinion,
the answer is No. !fan Ordinance is not laid before the State Legislature
it does not become invalid or-void. However, a view has been expressed G
that if an Ordinance is not at all laid before the Legislative Assembly
then it cannot have the same force and effect as a law enacted and
would be of no consequence whatsoever. In this view, the force and
effect of an Ordinance as a law is dependent on the happening of a
future uncertain event, that is, laying the Ordinance before the Legislative H
256 SUPREME COURT REPORTS [2017] 5 S.C.R.

A Assembly. I am afraid the force and effect of a law cannot depend on
an uncertainty and the occurrence ofa 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.
B
16. Article 213(2) of the Constitution is, in a sense, disjunctive -the first
part declaring that an Ordinance promulgated under this Article shall
liave 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
c read the first part as being conditional or dependent on the performance
of the second part, that is to say that ifthe 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
D not have the force and effect of a law, then it must necessarily_ be void
ab initio or would it be void from the date on which it is required to be
laid before the Legislative Assembly, or some other date? This is not at
all clear and the view that the Ordinance would be of no consequence
whatsoever or void introduces yet another uncertainty - when should
E the Ordinance be laid before the Legislative Assembly- immediately on
its reassembly or on a later date and from which date does it become
void?
18. Article 213(3) of the Constitution provides for the only
contingency when an Ordinance is void. This provision does not suggest
F that an Ordinance would be void if it is not placed before the State
Legislature. The framers of our Constitution were quite conscious of
and recognized the distinction between an Ordinance that is void (under
Article 213(3) of the Constitution) and an Ordinance that ceases to
operate (under Article 213(2) of the Constitution). !fan Ordinance is
void, then any action taken under a void Ordinance would also be void.
G But if an Ordinance ceases to operate, any action taken under the
. Ordinance would be valid during the currency of the Ordinance since it
has the force and effect of a law. Clear! y, therefore, the distinction
between Clause (2) and Clause (3) of Article 213 of the Constitution is
real and recognizable as also the distinction between an Ordinance that
H is void and an Ordinance that ceases to operate. A contrary view blurs
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAP. 257
[MADAN B. LOKUR, J.]

that distinction and effectively converts an Ordinance otherwise valid A
into a void Ordinance. I am afraid this is not postulated by Article 213 of
the Constitution.
19. For the above reasons, both textual and otherwise, I hold that
on a reading ofArticle 213(2) of the Constitution it is not mandatory that
an Ordinance should be laid before the Legislative Assembly of the State B
Legislature. While concluding that the Constitution does not make it
mandatory for the Executive to lay an Ordinance promulgated by the
Governor of the State before the Legislative Assembly, I do share the
concern what this would mean for our democracy in the long run; perhaps
the State Legislatures would need to be more vigilant and proactive in C
keeping a check on the Executive riding roughshod over democratic
requirements and exert their constitution.al supremacy over the Executive.
20. What can a Member of the Legislative Assembly do if an
Ordinance is not laid before the State Legislature- is he without recoarse'!
When an Ordinance is promulgated it is printed in the Official Gazette
and therefore every legislator is aware of its promulgation. As far as the D
State Legislature ofBihar 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 E
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 F
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 away by the Executive by simply not laying the G
Ordinance before the Legislative Assembly.
21. Therefore, even without making the laying of an Ordinance
before the State Legislature mandatory, the Constitution does provide
adequate checks and balances against a possible misuse of power by
the Executive.
H

-.,..,.._
258 SUPREME COURT REPORTS [2017] 5 S.C.R.

A Second scenario

22. As far as the second scenario is concerned, the Executive is
entitled to, in view of the provisions ofArticle 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 after its reassembly
B but before it is laid before the Legislative Assembly. In either situation
(particularly in the latter situation) could it be said that laying the
Ordinance before the Legislative Assembly would still be mandatory? I
do not think so. In such situations, no purpose would be served by laying
a withdrawn Ordinance before the State Legislature except perhaps
completing an empty formality. Our Constitution has not been framed
c for the sake of completing empty formalities. This is an additional reason
for holding that there is no mandatory requirement that regardless of the
circumstances, an Ordinance shall mandatorily be placed before the State
Legislature.

D 23. The reasons for withdrawal of an Ordinance by the Governor
at the instance of the Executive, whether before or after reassembly of
the State Legislature are not relevant for the present discussion and it is
not necessary to go into them.
Third scenario
E 24. The third scenario is where the Executive, in accordance
with Article 213(2)(a) of the Constitution lays an Ordinance before the
Legislative Assembly. The Ordinance could be 'ignored' and as a result
no one may move a Resolution for its disapproval. In that event, the
Ordinance would run its natural course and cease to operate at the
F expiration of six weeks of reassembly of the State Legislature.

25. However, if a Resolution is moved for disapproval of the
Ordinance, the State Legislature may reject the Resolution and in that
event too, the Ordinance would run its natural course and cease to operate
at the expiration of six weeks of reassembly of the State Legislature.
G
26. But if a Resolution for disapproval of an Ordinance is accepted
and the Ordinance disapproved then it would cease to operate by virtue
of the provisions ofArticle 213(2)(a) of the Constitution on the Resolution
being passed by the Legislative Assembly and the Legislative Council
agreeing with it.
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 259
[MADAN B. LOKUR, J.]

27. In other words, several possibilities get thrown up when an A
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. B
28. In fact, a situation of replacing an Ordinance by a Bill did
arise in State of Orissa v. Bhupendra Kumar Bose 4 read with
Bhupendra Kumar Bose v. State of Orissa.; In that case, the Orissa
Municipal Elections Validation Ordinance, 1959 (Orissa Ordinance No. I
of 1959) was promulgated by the Governor of Orissa on l 51h January,
1959. It is not clear whether the Ordinance was laid before the State C
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 23m February, 1959 a Bill entitled "Orissa Municipal Election Validating
Bill, 1959". However, the Legislative Assembly refused to grant leave
for its introduction by a majority of votes. This decision of the majority D
had no impact on the life of the Ordinance which lapsed apparently on
I" April, 1959 six weeks after reassembly of the State Legislature.
29. It is clear that when a Bill is introduced in the Legislative
Assembly, it becomes the property of the Legislative Assembly and even
assuming an Ordinance is laid before the State Legislature and is
disapproved by a Resolution, the disapproval has no impact on the Bill. E
Conversely, ifthe introduction of a Bill is declined by the Legislative
Assembly or a Bill introduced in the Legislative Assembly is defeated, it
will have no imgact on an Ordinance laid before the Legislative Assembly
which will continue to operate till it is disapproved or it ceases to operate
at the expiration of six weeks of reassembly of the Legislative Assembly. F
Whether to pass or not pass or enact or not enact a Bill into a law is
entirely for the Legislative Assembly to decide regardless of the fate of
the Ordinance, as is obvious or is even otherwise evident from
Blmpendra Kumar Bose. Similarly, disapproval of an Ordinance is
entirely for the Legislative Assembly and the Legislative Council to decide
regardless of the fate of any Bill introduced or sought to be introduced. G
30. The sum and substance of this discussion is: (i) There is no
mandatory requirement that an Ordinance should be laid before the
4
1962 Supp (2) SCR 380 - Bench of 5 Judges
5
OJC No.12of1959 decided on 20.03.10959 by the Orissa High Court [MANU/OR/
oo 1411960] H
260 SUPREME COURT REPORTS [2017] 5 S .C.R.

A Legislative Assembly on its reassembly. (ii) The fate of an Ordinance,
whether it is laid before the Legislative Assembly or not, is governed
entirely by the provisions ofArticle 213(2)(a) of the Constitution and by
the Legislative Assembly. (iii) The limited control that the Executive has
over the fate of an Ordinance after it is promulgated is that of its
withdrawal by the Governor of the State under Article 213(2)(b) of the
B
Constitution - the rest of the control is with the State Legislature which
is the law making body of the State.
Effect of concluded transactions under an Ordinance
31. In the above background and in view of the facts before us,
the issue arising in the present appeals also relates to the effect or
c consequences or survival of actions and transactions concluded under
an Ordinance prior to its ceasing to 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
D 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
E 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.
F 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 cannot continue
without any basis in law. Quite naturally, all actions intended to be
commenced on the basis of the Ordinance cannot commence after the
G Ordinance has ceased to operate. Do actions or transactions co'l.cluded
before the Ordinance ceases to operate survive after the terminal date?
34. As far as an Act enacted by a State Legislature is concerned,
there is no difficulty in appreciating the consequence ofits repeal. Section
6 of the General Clauses Act, 1897 is quite explicit on the effect of the
H ·repeal of an Act passed by a Legislature.
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 261
[MADAN B. LOKUR, J.]

35. In so far as a temporary Act is concerned, actions taken during A
its life but not concluded before it terminates (pipeline transadions) will
not continue thereafter since those actions and transactions would not
be supported by any existing law. However, to tide over any difficulty
that might be caused in such an eventuality, a temporary Act could provide
for the continuance of such actions and transactions. The reason for this
B
is that a temporary Act is enacted by the Legislature and it certainly has
the power to cater to such eventualities. Therefore, ifthere is a permissive
provision to the contrary, a pipeline transaction could survive the life of a
temporary Act. Such an eventuality specifically came up for consideration
.
before a Constitution Bench of this Court in S. Krishnan v. State of
'
Madras. 6 In that case, the Preventive Detention Act, 195.0 (a temporary C
Act that would cease to have effect on l ''April, 1951 except as regards
things done or omitted to be done before that date) was amended by the
Preventive Detention (Amendment)Act, 1951. The period of preventive
d_etention of detenus (such as the petitioners therein who were alreadi
under detention) was extended from one year to two years by extending
the life of the Preventive Detention Act, 1950 till I'' April, 1952. D
36. One of the questions that arose for the consideration of this
Court in that case was whether the preventive detention of a person,
detained for example on 21'' February, 1951 (as in the case of some
petitioners) could continue beyond 31 ''March, 1951 (or l ''April, 1951)
by virtue of the Amendment Act when the temporary Act under which E
they were detained would have, but for the Amendment Act, ceased to
operate on l" April, 1951. This involved the interpretation and
constitutional validity of Section 12 of the Amendment Act which reads
as follows:
"For the avoidance of doubt it is hereby declared - F

(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 G
(b) nothing contained in sub-section (3) of Section 1, or sub-section
(1) of Section 12 ofthisAct as originally enacted shall be deemed
to affect the validity or duration of any such order."

'(1951) SCR 621-Bench of5 Judges H
262 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 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 31 '' March, 1951 was valid. It was said:
B " ...... 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 preventive detention under
the Act cannot be continued. The general rule in regard to a
c temporary statute is that, in the absence of special provision
to the contrary, proceedings which are being taken against
the person under it will ipso facto terminate as soon as the
statute expires (Craies on Statutes, 4' 11 Edition, p. 347).
Preventive detention which would, but for the Act
D authorizing it, be a continuing wrong, cannot, therefore, be
continued beyond the expiry of the Act itself. The new Act
thus in substance prescribes a maximum period of detention under
it by providing that it shall cease to have effect on a specified
date." [Emphasis supplied].

E 38. Justice Mahajan (with Justice S.R. Das concurring) also took
a definitive view that nothing further could be done under a temporary
Act after it expires. It was held as follows:
"It may be pointed out that Parliament may well have thought that
it was unnecessary to fix any maximum period of detention in the
F new statute which was of a temporary nature and whose own
tenure oflife was limited to one year. Such temporary statutes
cease to have any effect after they expire, they automatically
come to an end at the expiry of the period for which they
have been enacted and nothing further can be done under
them. The detention of the petitioners therefore is bound to come
G to an end automatically with the life of the statute and in these
circumstances Parliament may well have thought that it would be
wholly unnecessary to legislate and provide a maximum period of
detention for those detained under this law." [Emphasis supplied].
39. Thereafter, it was held that since the Amendment Act was
H valid, the petitioners were not entitled to release merely on the ground
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 263
[MADAN B. LOKUR, J.)

that the period of one year mentioned in the Preventive Detention Act, A
1950 had expired.
40. Justice Vivian Bose disagreed with the majority view and held
that the expiry of the temporary Act would not result in the preventive
detentions coming to an end. The learned Judge held:
" .... I cannot agree that these detentions would come to an end B
with the expiry of the Act. The rule in the case of temporary Acts
is that-
"as a general rule, and unless it contains some special
provision to the contrary, after a temporary Act has expired
no proceedings can be taken upon it, and it ceases to have any C
further effect. Therefore, offences committed against
temporary Acts must be prosecuted and punished before the
Act expires." (Craies on Statute Law,41h edition, p. 347).
But transactions which are concluded and completed before the
Act expires continue in being despite the expiry. See Crait:s on D
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 E
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). F
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 remembered that G
an Ordinance has "the same force and effect as an Act of the Legislature
of the State assented to by the Governor" [Art. 213(2) of the
Constitution] but is not an Act of the Legislature - it is not even a
temporary Act of the Legislature.
H
264 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 42. This question came up for consideration in Bhupendra Kumar
Bose and while deciding the issue, this Court referred to three English
decisions - Warren v. Windle 1 , Steavenson v. Oliver and Wicks v.
Director of Public Prosecutions9 •
43. In Warren the decision of the Comi was that where a statute
B professes to repeal absolutely a prior law, and substitutes other provisions
on the same subject, which are limited to continue only till a certain time,
the prior law does not revive after the repealing statute is spent, unless
the intention of the Legislature to that effect is expressed. In.that context,
it was stated by Lord Ellenborough, CJ. that "a law, though temporary
in some of its provisions, may have a permanent operation in other
c respects. The stat. 26 Geo. 3, c. 108, professes to repeal the statute of
19 Geo. 2, c. 3 5, absolutely, though its own provisions, which it substituted
in place of it, were to be only temporary."
44. In Steavenson the temporary statute expired on l ''August,
1826 but in.the meantime a person was given a right to practice as an
D apothecary. The temporary statute did not contain any savings provision
and it was contended that the expiration of the temporary statute would
bring to an end all the rights and liabilities created by it. On these broad
facts, it was observed by one of the learned judges (Parke, B.) that the
construction of the statute would be the determining factor. It was held:
E "Then comes the question, whether the privilege of practising given by
that stat. 6 Geo.4, referred to in the replication, is one which continues
notwithstanding the expiration of that statute. That depends on the
construction of the temporary enactment. There is a difference
between temporary statutes and statutes which are repealed; the latter
(except so far as they relate to transactions already completed under
F them) become as if they had never existed; but with respect to the former,
the extent of the restrictions imposed, and the duration of the provisions,
are matters of construction. We must therefore look at this act, and
see whether the restriction in the ll'h clause, that the provisions
- of the statute were only to last for a limited time, is applicable to
G this privilege. It seems to me that the meaning of the legislature was,
that all assistant-surgeons, who were such before the l ''ofAugust, 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 l" of August,
7 (1803) 3 East 205; 102 E.R (KB) 578
8
151E.R.1024
H '(1947] AC 362
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 265
[MADAN B. LOKUR, J.]

1815, and that their privilege as such was ofan executory nature, capable A
of being carried into effect after the l'' 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
B
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 C
anybody that the provision following immediately is not absolute,
but is going ·to be qualified in some way by what follows. It is
therefore not the case that, at the date chosen, the Act
expires in every sense; there is a qualification. Without
discussing whether the intermediate words are qualifications, sub- D
s. 3, in my opinion, is quite plainly a qualification. It begins with
the phrase 'The expiry of this Act" - a noun which corresponds
with the verb "expire" -"The expiry of this Act shall not affect
the operation thereof as respects things previously done
or omitted to be done."
E
Learned counsel for the appellants have therefore been driven to
argue ingeniously, but admit candidly, that the contention they are
putting forward is, that the phrase "things previously done" does
not cover offences previously committed. I think that view cannot
be correct. It is clear that Parliament did not intend sub-s. 3
to expire with the rest of the Act, and that its presence in the F
statute is a provision which preserves the right to prosecute after
the date of expiry." [Emphasis supplied].
46. In all three cases, on a construction of the temporary st1:tute,
it was held that its provisions would not come to an end on its expiry.
This Court, on a consideration of the matter acknowledged that G
proposition and accepted the view taken by Patanjali Sastri J that on the
expiry of a temporary Act, all actions and transactions terminate unless
the temporary Act provides otherwise. This is clear from the following
passage in Blmpendra Kumar Bose:
"It is true that the provisions of Section 6 of the General Cleuses
Act in relation to the effect of repeal do not apply to a temporary H
266 SUPREME COURT REPORTS [2017] 5 S.C.R.

A Act. As observed by Patanjali Sastri, J., as he then was, in S.
Krishnan v. State of Madras the general rule in regard to a
temporary statute is that in the absence of special provision to the
contrary, proceedings which are being taken against a person under
it will ipso facto terminate as soon as the statute expires. That is
why the Legislature can and often does, avoid such an
B
anomalous consequence by enacting in the temporary
statute a saving provision, the effect of which is in some
respects similar to that of S.6 of the General Clauses Act.
Incidentally, we ought to add that it may not be open to the
Ordinance making authority to adopt such a course because of·
c the obvious limitation imposed on the 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
D into the picture at all) and equated them. By making that equation, this
Court with respect, mac\e.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:
E "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
F 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 English decisions concerned themselves with the
G construction of temporary statutes and nothing else. Bhupendra Kumar
Bose adopted for Ordinances the construction of temporary ·statutes
given by the English decisions and introduced an 'enduring rights' theory
into our jurisprudence.
49. But, what is more significant for the present purposes is that
H though this Court accepted the view of Patanjali Sastri J, an observation
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 267
[MADAN B. LOKUR, J.]

was made at the end of the above quoted passage, that is, "Incidentally, A
we ought to add that it may not be open to the Ordinance making
authority to adopt such a course [of enacting a savings provision as in
a temporary statute] because of the obvious limitation imposed on
the said authority by Article 213(2)(a) [of the Constitution]." In view
of the above, I see some difficulty in incorporating the 'enduring rights'
B
theory into Ordinances.
50. This observation is significant for two reasons: Firstly, it
recognizes the obvious distinction between a temporary Act and an
Ordinance. Secondly it recognizes that while there may be life after the
expiry of a temporary Act if a savings provision is incorporated therein,
Article 213(2)(a) of the Constitution perhaps prohibits the incorporation C
ofa provision having an enduring effect in an Ordinance, by necessary
implication, with the result that there may not be any life in an Ordinance
after it ceases to operate. In other words, neither any pending action or
transaction nor any concluded action or transaction can survive beyond
the date of expiry of an Ordinance. I accept this proposition.because of D
the historical background relating to Ordinances.
Historical background
51. Section 88 of the Government oflndiaAct, 1935 gave power
to the Govemor of a Province to promulgate an Ordinance during the
recess of the Legislature, ifhe is satisfied that circumstances exist which
E
render it necessary to take immediate action.
52. Section 90 of the Government India Act, 1935 gave an
extraordinary power to the Governor to enact a Govemor'sAct containing
such provisions as he considers necessary. Sub-section (3) of Section
90 of the Government ofindiaAct, 1935 provides that a Governor's Act
shall have the same force and effect as an Act of the Provincial F
Legislature assented to by the Governor. In other words, the Governor
had the power to promulgate an Ordinance (Section 88) and also enact
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 oflndiaAct, 1935 is that this Act G
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 ~s an
Act of the Provincial Legislature assented to by the Governor after the
H
268 SUPREME COURT REPORTS [2017] 5 S.C.R.

A expiry of its shelflife. If the effect of an Ordinance promulgated by the
Governor were to survive after the expiry ofits shelflife for an indefinite
period, there would have been no occasion for enacting Section 90 of
the Government oflndia Act, 193 5 empowering the Governor to enact a
Governor's Act, since an appropriately drafted savings clause in an
Ordinance would serve the same purpose.
B
54. Appreciating this distinction, the ConstituentAssembly 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 an Ordinance as is clear
from a reading of Article 213 of the Constitution. The rete:ition of
c impermanence is also clear from a reading of Article 213 of the
Constitution in juxtaposition with some other provisions of the Constitution.
For example, Article 357(2) of the Constitution (as originally framed)
provided that Parliament or the President or any other authority may
exercise the power of a State Legislature in making a law during a
D Proclamation of an emergency issued under Article 356 of the
Constitution. However, that law shall cease to have effect on the
expiration of one year after the Proclamation has ceased to operate
"except as respects things done or omitted to be done before the expiration
of the said period ...... " By the Constitution (Forty-second Amendment)
Act, 197 6 the period of one year was deleted and such law shall continue
E in force until altered or repealed or amended by a competent Legislature
or other authority even after the Proclamation issued under Article 356
of the Constitution has ceased to operate.
55. Similar provisions excepting things done or omitted to be done
(for a limited period of six months) are found in Article 249 and Article
F 250 of the Constitution notwithstanding that a Resolution passed under
Article 249 of the Constitution has ceased to be in force (in the case of
Article 249 of the Constitution) or a Proclamation issued under Article
356 of the Constitution has ceased to operate (in the case of Article 250
of the Constitution).
G 56. Although Article 359(1-A) of the Constitution was not a part
of the Constitution as originally framed, it too provides for saving things
done or omitted to be done before the law ceases to have effect. Brother
Chandrachud has sufficiently dealt with these and other similar provisions
of the Constitution and it not necessary to repeat the views expressed in
this regard.
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 269
[MADAN B. LOKUR, J.]

57. It is clear, therefore, that in the absence of a savings clause A
Article 213 the Constitution does not attach any degree of permanence
to actions or transactions pending or concluded during the currency of
an Ordinance. It is apparently for this reason that it was observed in
Bhupendra Kumar Bose that in view of Article 213(2)(a) of the
Constitution an Ordinance cannot have a savings clause which extends
B
the life of actions concluded during the currency of the Ordinance.
58. Therefore, there is a recognizable 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 c
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 D
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) (Ill Ordinance
cannot provide for a savings clause that will operate beyond the life of E
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, whichever way the issue is considered, it
is clear from the Constitution that concluded actions and transactions
under an Ordinance do not continue beyond the life of the Ordinance. F
60. However, it must be made clear that there is obviously no
constitutional restraint on the State Legislature in enacting a law in terms
of an Ordinance and thereby giving permanence to it.
Decision in Venkata Reddy extending Bhupendra Kumar Bose
61. In Venkata Reddy this <,:ourt went a step further than G
Bhupendra Kumar Bose and introduced the concept of irreversibility
of a completyd transaction as against the enduring character of a right
or liability laid Jo'Yn :.1 Bhu]A!n.'1;.: J(11mar Bose. The decision in
Venkata Reddy cealt with the v:'.!ic'it)·'Jfthc Andhra Pradesh Abolition
of Posts of Part-time ViUaJe Oftic~rs Ordinance, 1984 (Ordinance 1 of H
270 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 1984) promulgated by the Governor of Ar,dhra Pradesh. As the title of
the Ordinance suggests, it abolished the posts of part-time village officers
in the State of Andhra Pradesh and provision was made· for the
appointment of village assistants. One of the contentions raised in the
writ petitions challenging the validity of the Ordinance was: "The
B Ordinance having lapsed as the Legislature did not pass an Act in its
place, the posts which were abolished should be deemed to have revived
and the issue of successive ordinances the subsequent one replacing the
earlier one did not serve any purpose."
62. Rejecting this contention, this Court observed that if the
C requirements ofArticle 213(2)(a) of the Constitution were not met, then
an Ordinance "shall cease to operate" which "only means that it should
be treated as being effective till it ceases td operate on the happening of
the events mentioned in clause (2) ofArticle 213." In other words, since
an Ordinance shall have the same force· and effect as an Act of the
Legislature of the State assented to by the Governor, it would be operate
D as a law from the date of its promulgation till the date it ceases to operate.
This is quite obvious from a reading ofArticle 213(2) of the Constitution
which makes it abundantly clear that an Ordinance has the 'same force
and effect' as an Act of the State Legislature assented to by the Governor.
Consequently, merely because an Ordinance ceases to operate by efflux
of time or is disapproved under Article 213(2)(a) of the Constitution
E does not void or efface 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
F 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
G 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
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 271
[MADAN B. LOKUR, J.]

any longer. Yet this Court held that the State Legislature was not powerless A
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 this view. As it is, in view of
Article 213(2) ofthe Constitution an Ordinance cannot, on its own terms,
create a right or a liability of an enduring or irreversible nature otherwise B
an extraordinary power would be conferred in the hands of the Executive
and the Governor of the State which is surely not intended by our
Constitution. If such a power were intended to be conferred upon the
Executive and the Governor of the State, it would be bringing in Section
90 of the Government of India Act, 1935 into our Constitution through
the back door.
c
65. It seems to me that if a situation is irreversible, then it is
irreversible. If a situation could be reversed through the enactment of a
retrospective law, then surely the status quo ante can be restored on
the lapsing of an Ordinance by efflux of time or its disapproval by the
Legislative Assembly. The same can be said of an action or transaction D
of an enduring nature. Undoubtedly, there are a few physical facts that
are of an enduring nature or irreversible. For example, if an Ordinance
were to provide for the imposition of the death penalty for a particular
offence and a person is tried and convicted and executed during the
currency of the Ordinance, then obviously an irreversible situation is E
created and even ifthe Ordinance lapses by efflux of time or is void, the
status quo ante cannot be restored. So also in a case of demolition of
an ancient or heritage monument by an Ordinance. Such physically
irreversible actions are few and far between and are clearly
distinguishable from 'legally irreversible' actions.
F
66. There is a distinction between actions that are 'irreversible'
and actions that are reversible but a burden to implement. The situations
that arose in Bliupendra Kumar Bose and Venkata Reddy were not
physically irreversible though reversing them may have been burdensome.
If elections are set aside or posts are abolished, surely fresh elections
can be held and posts revived. In this context, it is worth recalling that G
should the need arise, as in Nabam Rebia v. Deputy Speaker,
Arunaclial Pradesh Legislative Assembty' 0 this Court can always
restore the status quo ante. Bliupendra Kumar Bose and Venkata
Reddy did not present any insurmountable situation.
IO (2016) 8 sec I - Bench of 5 Judges H
272 SUPREME COURT REPORTS [2017] 5 S.C.R.

A 67. Therefore, I am not in a position to incorporate the 'enduring
nature' or 'irreversible effect' theory in an Ordinance 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.
B
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
c 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,
D 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 ofBihar. 11 There is no universal or blanket prohibition against re-
promulgation of an Ordinance, but it should not be a mechanical re-
promulgation and should be a very rare occurrence. Additionally, a
E responsibility is cast on the Governor of a State by the Constitution to
promulgate or re-promulgate an Ordinance only ifhe is satisfied of the
existence of circumstances rendering immediate action necessary. There
could be situations, though very rare, when re-promulgation is necessary,
but it is not necessary for me to delve into this issue insofar as the first
F three Ordinances are concerned.
69. Only the fourth and subsequent Ordinances were challenged
by the employees. As far as the fourth and subsequent Ordinances are
concerned, their promulgation and re-promulgation was not adequately
justified by the State ofBihar despite a specific challenge. Ther.: was no
G immediate action required to be taken necessitating the promulgation of
the fourth Ordinance and its re-promulgation by subsequent Ordinances.
I agree that the fourth Ordinance and subsequent Ordinances should be
struck down.

11 (1987) I SCC 378- Bench of 5 Judges
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 273

~cl A
70. In the absence of any challenge to the first three Ordinances
and since I have assumed that these three Ordinances are valid, the
benefit given to the employees (such as salary and perks) by these
Ordinances till they ceased to operate are justified. However, these
three Ordinances did not and could not grant any enduring or irreversible B
right or benefits to the employees and the employees did not acquire any
enduring or irreversible right or benefits under these three Ordinances.
Any right or benefits acquired by them terminated when the Ordinances
ceased to operate.
71. Despite a specific challenge made to the fourth and subsequent
Ordinances, the State ofBihar has not justified their promulgation. They C
are therefore struck down.
72. The directions given by the High Court for payment of salary
(if not already paid) and interest thereon need not be disturbed. The
reference is answered accordingly.
D
ORDER
T. S. THAKUR, CJI
1. I have had the advantage of reading the order proposed by my
esteemed brother Dr. D.Y. Chandrachud, J. and the discordant note
struck by MadanB. Lokur, J. to the same. The genesis of the controversy E
giving rise to this reference to a larger bench has been elaborately set
out in the order proposed by Chandrachud, J. to which I can make no
useful addition especially when the narrative is both lucid and factually
accurate. All that I need mention is that the seminal question that crises
for our consideration is whether seven successive repromulgations of F
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 decisi'Jn of G
this Court in D.C. Wadhwa and Ors. v. State qf 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 H
274 SUPREME COURT REPORTS [2017] 5 S.C.R.

A . 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 of the view expressed by this
Court in two earlier Constitution Bench decisions in State of Orissa v.
B Bhupendra Kumar Bose ( 1962) Supp. 2 SCR 380 and T. Venkata Reddy
v. State ofAndhra Pradesh ( 1985) 3 SCC 198, the matter was referred
to a bench of Seven-Judges for an authoritative pronouncement.
3. In the order proposed by Chandtachud, J., his Lordship has
dealt with, at great length, several aspects that arise directly or incidentally
for our adjudication and inter alia concluded that seven successive
c repromulgations of the first ordinance issued in 1989 was a fraud on the
Constitution especially when none of the ordinances were ever tabled
before the Bihar Legislative Assembly as required under Article 213(2)
of the Constitution. I am in complete agreement with the view expressed
by my esteemed brother Dr. Chandrachud, J. that repeated
D repromulgation of the ordinances was a fraud on the Constitution
especially when the Government of the time appears to have persistently
avoided the placement of the ordinances before the legislature. In light
of the pronouncement of this Court in D.C. Wadhwa's case (supra),
such repeated repromulgations were legally impermissible which have
been rightly declared to be so by the High Court. Even Lokur, J. has, in
E the order proposed by His Lordship, found repromulgated ordinances to
be unconstitutional except for the first three ordinances which, according
to His Lordship, survive not because they were un~ffected by the vice
of unconstitutionality but because they were not challenged by the
petitioners. The need for such a challenge did not in my opinion arise. I
F say so with respect because the first, second and third ordinances stood
repealed by the subsequent ordinances issued by the Government. At
any rate, since the process of issuing the ordinances and repromulgation
thereof was in the nature of a single transaction and a part of a single
series on the same subject the vice of invalidity attached to any such
exercise of power would not spare the first, second and the third
G ordinances which would like the subsequent ordinances be
unconstitutional on the same principle. These ordinances provided the
foundation for the edifice of the subsequent repromulgations. If the
edifice was affected, there is no way the foundation could remain
unaffected by the vice ofunconstitutionality. I would in that view agree
H
KRISHNA KUMAR SINGH & ANR. v. STATE OF BIHAR 275
[T. S. THAKUR, CJI]

with the conclusion drawn by Chandrachud, J. that the ordinances in A
question starting with Ordinance 32 of 1989 and ending with Ordinance
2of1992 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 t-0 that conclusion.
4. The next question then is whether ordinances issued by the B
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 C
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. lt follows that the ordinances issued in the instant
case could not have created any enduring rights in favour of Sanskrit D
school teachers particularly when the ordinances themselves were a
fraud on the Constitution. The High Court and so also the views
· expressed by my esteemed brothers Madan B. Lokur and Chandrachud,
JJ. on this aspect are in my opinion legally unexceptionable.
5. That brings me to the question whether the benefit of salaries E
drawn by Sanskrit school teachers covered by the ordinances can be
reversed and the amount so received by them, recovered by the State
Government. Lokur, J. has taken the view that since the first three
ordinances are valid, anything received by them dming the currency of
the said ordinance cannot be recovered. Chandrachud, J. has also in
conclusion directed that no recovery of salaries which have been paid F
shall be made from any of the employees. I concur with that direction,
for in my opinion teachers who were paid their salaries under the
ordinances and who organised their lives and affairs on the assumption
and in the belief that the amoimt paid to them was legitimately due and
payable cannot at this distant point of time be asked to coi1gh up the G
amount disbursed to tlfem. Payments already made shall not accordingly
be recoverable from those who have received the same.
6. The order proposed by Chandrachud, J. also deals with several
other aspects including the question whether the obligation to place an
ordinance before the legislature in terms of Article 213 and 123 is H
276 SUPREME COURT REPORTS [2017] S S.C.R.

A mandatory and whether non-placement of ordinances before the
Parliament and the State legislature as the case may be would itself
constitute a fraud on the Constitution. While Chandrachud, J. has taken
the view that placing of the ordinances is an unavoidable Constitutional
obligation and the breach whereof affects the efficacy of the ordinances,
B Lokur, J. has taken a different view. In my opinion, the question whether
placing the ordinance before the legislature is mandatory need not be
authoritatively decided as this appeal and the Writ Petitions out of which
the same arises can be disposed of without addressing that question.
Regardless whether the requirement of placing the ordinance is
mandatory as held by Chandrachud, J. or directory as declared by Lola.Jr
C J ., the repeated repromulgation of the ordinances were in the light of the
pronouncement of this Court in D.C Wadhwa's case constitutionally
impermissible and a fraud on the powers vested in the executive. If that
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
D 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 ofre-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
E 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
F
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 petitioners. I would, in that view, leave
the question of interpretation of Articles 123 (2) and 213(2) in so far as
the obligation of the Government to place the ordinance before the
G Parliament/legislature open. With these few lines the reference shall
stand answered in terms of what is proposed by brother Chandrachud, J.

Devika Gujral Reference answered.