2017 (1) TMI 1492 - SC - Indian Laws

Promulgation of an Ordinance before the Legislative Assembly of the State Legislature - Mandatory under Article 213(2) of the Constitution Or Not - enduring or irreversible rights in a citizen - legality of re-promulgation of an Ordinance - concept of disapproval of an Ordinance by a Resolution as mentioned in Article 213(2)(a) of the Constitution - Expression disapproval - adequate checks and balances against a possible misuse of power by the Executive - Whether after an Ordinance ceases to operate do concluded actions and transactions under that Ordinance survive - distinction between a temporary Act and an Ordinance. HELD That - 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 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 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 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. We have already adduced reasons earlier for overruling the enduring rights theory based on the analogy of a temporary statute. Moreover as we have indicated 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 of Bihar promulgated 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 together constitute a fraud on constitutional power. Conclusion- In summation the conclusions in this Judgment are as follows (i) 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 be of the Governor that circumstances exist which render it necessary to take immediate action; (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; (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 or the Governor into a parallel source of law making or an independent legislative authority; (v) 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 Council of Ministers which owes collective responsibility to the legislature; (vi) 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 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); (vii) 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; (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 D C Wadhwa; (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 13 245 255 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 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 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 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 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 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 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; (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. 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 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 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. 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 legislature and were re-promulgated in violation of the binding judgment of this Court in D C Wadhwa 1986 (12) TMI 381 - SUPREME COURT 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 been paid during the tenure of the ordinances in pursuance of the directions contained in the judgment of the High Court.

Summary

Issues Involved:
1. Whether laying an Ordinance before the State Legislature is mandatory under Article 213(2) of the Constitution.
2. Whether an Ordinance can create enduring or irreversible rights in a citizen.
3. The legality of re-promulgation of an Ordinance.
4. The validity of the specific Ordinances promulgated by the Governor of Bihar.
5. The effect of concluded transactions under an Ordinance that has ceased to operate.

Detailed Analysis:

1. Mandatory Nature of Laying an Ordinance Before the Legislature:
One judge expressed disagreement with the view that laying an Ordinance before the State Legislature is mandatory under Article 213(2) of the Constitution. It was argued that not laying an Ordinance before the Legislature does not invalidate it but merely causes it to cease to operate after six weeks from the reassembly of the Legislature. The Constitution does not provide any consequence other than the Ordinance ceasing to operate. Thus, it is not mandatory for the Executive to lay an Ordinance before the Legislative Assembly.

2. Enduring or Irreversible Rights Created by an Ordinance:
The judgment overruled the contrary views expressed in previous cases (State of Orissa v. Bhupendra Kumar Bose and T. Venkata Reddy v. State of Andhra Pradesh), stating that an Ordinance cannot create enduring or irreversible rights in a citizen. An Ordinance is constitutionally transient and cannot provide for any savings clause or contingency that would extend beyond its life.

3. Legality of Re-promulgation of an Ordinance:
The judgment held that the re-promulgation of an Ordinance by the Governor is not per se a fraud on the Constitution, but it should not be a mechanical exercise. The Governor must be satisfied that circumstances exist which render it necessary for immediate action. However, the re-promulgation of Ordinances without adequate justification, as seen in the case of Bihar, was deemed unconstitutional.

4. Validity of Specific Ordinances Promulgated by the Governor of Bihar:
The judgment concluded that the first three Ordinances, not being challenged by the employees, are assumed valid. However, the fourth and subsequent Ordinances were struck down due to inadequate justification by the State of Bihar, despite a specific challenge by the employees. The High Court's decision to strike down these Ordinances was upheld.

5. Effect of Concluded Transactions Under an Ordinance:
The judgment clarified that actions and transactions concluded under an Ordinance before it ceases to operate do not survive beyond its life. The Constitution does not attach any degree of permanence to actions or transactions pending or concluded during the currency of an Ordinance. The distinction between a temporary Act and an Ordinance was emphasized, noting that an Ordinance cannot constitutionally make provisions for enduring effects.

Conclusion:
The judgment provided a comprehensive analysis of the constitutional provisions related to the promulgation and re-promulgation of Ordinances, emphasizing the importance of legislative control and the temporary nature of Ordinances. The specific Ordinances in question were evaluated, leading to the conclusion that the first three were assumed valid due to lack of challenge, while the fourth and subsequent Ordinances were struck down. The judgment also clarified that concluded transactions under an Ordinance do not survive beyond its life, reinforcing the transient nature of Ordinances.