Krishna Kumar Singh & ANR. Vs. State of Bihar & Ors.
[Civil Appeal No. 5875 of 1994]
[Civil Appeal Nos. 5876-5890 of 1994]
[Writ Petition (C) No. 580 of 1995]
[Civil Appeal Nos. 3533-3595 of 1995]
Madan B. Lokur, J.
1. Having carefully read the erudite judgment prepared by brother 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 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.
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. Bhupendra Kumar Bose[1] and T. Venkata Reddy v. State of Andhra Pradesh[2] requires to be overruled. In overruling these decisions, I agree with brother Chandrachud though my reasons are different.
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 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 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 Consequently, even though these three Ordinances may have been repealed, the employees would be entitled to the benefits under them till they ceased to operate and the benefits obtained by the employees under these three Ordinances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, 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 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 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 of Bihar which has two Houses of the Legislature.
Promulgation of an Ordinance
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 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 of Article 213(2) of the Constitution. Clause (a) of Article 213(2) of the Constitution 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 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."
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 concerned with it.
7. There is no dispute in these appeals that the Governor of Bihar 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 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 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 that the separation of powers between the Executive and the Legislature is maintained and is also expected to ensure that the Executive does not transgress the constitutional boundary and encroach on the 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 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 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.
10. 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 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. 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 of a Proclamation (for example) and this 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 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 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.
(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 if it is not so laid?
(b) Secondly, the Executive may, in view of the provisions of Article 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 even after reassembly. In this scenario, is it still mandatory that the Ordinance be laid before the Legislative Assembly?
(c) 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. What could happen thereafter? I propose to deal with each possible scenario.
First scenario
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.
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 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 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. 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 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. If an Ordinance is not laid before the State Legislature it does not become invalid or void. However, a view has been expressed 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 Assembly.
I am afraid the force and effect of a law cannot depend on an uncertainty and the occurrence of a 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.
16. Article 213(2) of the Constitution is, in a sense, 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 for me to read the first part as 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.
17. If an Ordinance not laid before the Legislative Assembly does 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 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 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).
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 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. A contrary view blurs that distinction and effectively converts an Ordinance otherwise valid 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 of Article 213(2) of the Constitution it is not mandatory that an Ordinance should be laid before the Legislative Assembly of the State 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 keeping a check on the Executive riding roughshod over democratic requirements and exert their constitutional 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 recourse? 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 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 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 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 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.
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.
Second scenario
22. 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 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) 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 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.
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
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 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.
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 of Article 213(2)(a) of the Constitution on the Resolution being passed by the Legislative Assembly and the Legislative Council agreeing with it.
27. In other words, several possibilities get thrown up when an 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.
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.[5] In that case, the Orissa Municipal Elections Validation Ordinance, 1959 (Orissa Ordinance No.1 of 1959) was promulgated by the Governor of Orissa on 15th January, 1959. It is not clear whether the Ordinance was laid before the State 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 23rd 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 had no impact on the life of the Ordinance which lapsed apparently on 1st 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. Conversely, if the introduction of a Bill is declined by the Legislative Assembly or a Bill introduced in the Legislative Assembly is defeated, 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 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 Legislative Assembly to decide regardless of the fate of the Ordinance, as is obvious or is even otherwise evident from Bhupendra 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.
30. The sum and substance of this discussion is:
(i) There is no mandatory requirement that an Ordinance should be laid before the 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 of Article 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 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 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 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 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. 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 Ordinance has ceased to operate. Do actions or transactions concluded 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 of its repeal. Section 6 of the General Clauses Act, 1897 is quite explicit on the effect of the repeal of an Act passed by a Legislature.
35. 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 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. 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, 1950 (a temporary Act that would cease to have effect on 1st 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 detention of detenus (such as the petitioners therein who were already under detention) was extended from one year to two years by extending the life of the Preventive Detention Act, 1950 till 1st April, 1952.
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 21st February, 1951 (as in the case of some petitioners) could continue beyond 31st March, 1951 (or 1st April, 1951) by virtue of the Amendment Act when the temporary Act under which they were detained would have, but for the Amendment Act, ceased to operate on 1st 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 -
(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
(b) nothing contained in sub-section (3) of Section 1, or sub-section (1) of Section 12 of this Act as originally enacted shall be deemed to affect the validity or duration of any such order."
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 31st March, 1951 was valid. It was said: "...... 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 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, 4th Edition, p. 347). Preventive detention which would, but for the Act 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] .
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 new statute which was of a temporary nature and whose own tenure of life 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 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 valid, the petitioners were not entitled to release merely on the ground that the period of one year mentioned in the Preventive Detention Act, 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 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 further effect.
Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires." (Craies on Statute Law, 4th edition, p. 347). But transactions which are concluded and completed before the Act expires continue in being despite the expiry. See Craies on 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 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] .
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 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.
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[7] , Steavenson v. Oliver[8] and Wicks v. Director of Public Prosecutions[9] .
43. In Warren the decision of the Court was that where a statute 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, C.J. that "a law, though temporary in some of its provisions, may have a permanent operation in other respects. The stat. 26 Geo. 3, c. 108, professes to repeal the statute of 19 Geo. 2, c. 35, 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 1st August, 1826 but in the meantime a person was given a right to practice as an 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: "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 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 11th clause, that the provisions of the statute were only to last for a limited time, is applicable to this privilege.
It seems to me that the meaning of the legislature was, that all assistant-surgeons, who were such before the 1st of August, 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 1st of August, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after the 1st 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 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 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-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." 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 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 statute, 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 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 Bhupendra Kumar Bose: "It is true that the provisions of Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary 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 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 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 into the picture at all) and equated them. By making that equation, this Court with respect, made 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:
"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 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 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 though this Court accepted the view of Patanjali Sastri J, an observation was made at the end of the above quoted passage, that is, "Incidentally, 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' 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 of a 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 the historical background relating to Ordinances.
Historical background
51. Section 88 of the Government of India Act, 1935 gave power to the Governor of a Province to promulgate an Ordinance during the recess of the Legislature, if he is satisfied that circumstances exist which 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 Governor's Act containing such provisions as he considers necessary. Sub-section (3) of Section 90 of the Government of India Act, 1935 provides that a Governor's Act shall have the same force and effect as an Act of the Provincial 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 of India Act, 1935 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 terms of Section 88 of the Government of India 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 have been no occasion for enacting Section 90 of the Government of India 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.
54. 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 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 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 (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 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 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 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).
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.
57. It is clear, therefore, that in the absence of a savings clause 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 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 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 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) an Ordinance cannot provide for a savings clause that will operate beyond the life of 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.
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 Court went a step further than Bhupendra Kumar Bose and introduced the concept of irreversibility of a completed transaction as against the enduring character of a right or liability laid down in Bhupendra Kumar Bose. The decision in Venkata Reddy dealt with the validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 (Ordinance 1 of 1984) promulgated by the Governor of Andhra 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 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 requirements of Article 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 to operate on the happening of the events mentioned in clause (2) of Article 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 as a law from the date of its promulgation till the date it ceases to operate.
This is quite obvious from a reading of Article 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 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 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 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 any longer. Yet this Court held that the State Legislature was not powerless 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) of the Constitution an 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 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.
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 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 created and even if the 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.
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 Bhupendra 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 should the need arise, as in Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly[10] this Court can always restore the status quo ante. Bhupendra Kumar Bose and Venkata Reddy did not present any insurmountable situation.
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. 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 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, 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 of Bihar.[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 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 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 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 of Bihar 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. I agree that the fourth Ordinance and subsequent Ordinances should be struck down. Relief
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 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 of Bihar has not justified their promulgation. They 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.
.............................J ( Madan B. Lokur)
New Delhi;
January 2, 2017
Krishna Kumar Singh & ANR. Vs. State of Bihar & Ors.
[Civil Appeal No.5875 of 1994]
[Civil Appeal Nos.5876-5890 of 1994]
[Writ Petition (C) No.580 of 1995]
[Civil Appeal Nos.3533-3595 of 1995]
O R D E R
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 Madan B. Lokur, J. to the same. The genesis of the controversy 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 arises for our consideration is whether seven successive repromulgations of 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 decision of this Court in D.C. Wadhwa and Ors. v. State of 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 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. Bhupendra Kumar Bose (1962) Supp. 2 SCR 380 and T. Venkata Reddy v. State of Andhra 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 Chandrachud, 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 repromulgations of the first ordinance issued in 1989 was aUntitled 2 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 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 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 unaffected 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 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 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 of unconstitutionality. I would in that view agree with the conclusion drawn by Chandrachud, J. that 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, lending support to that conclusion.
4. The next question then is whether ordinances issued by the 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 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. It follows that 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 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 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 during 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 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 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 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 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, 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 Lokur 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 executi
