Constitutional Law

Krishna Kumar Singh v. State of Bihar

(2017) 3 SCC 1

Citation: (2017) 3 SCC 1
Court: Supreme Court of India
Date: 2 January 2017
Bench: T.S. Thakur C.J.; Madan B. Lokur; S.A. Bobde; Adarsh Kumar Goel; U.U. Lalit; D.Y. Chandrachud; L. Nageswara Rao

Facts

Bihar promulgated an Ordinance providing for State takeover of hundreds of Sanskrit schools.
The measure also dealt with the absorption of teachers and employees into government service.
The first Ordinance was followed by a series of substantially similar Ordinances.
None was converted into an Act of the Legislature.
The final Ordinance eventually lapsed.
Teachers and employees argued that the rights created during the Ordinances’ operation—including absorption and service benefits—continued even after lapse.
The dispute required a seven-judge Bench to reconsider:
repeated re-promulgation;
the duty to lay Ordinances before the Legislature; and
whether rights created by an expired Ordinance automatically survive.

Whether laying an Ordinance before the Legislature is constitutionally mandatory.
Whether repeated re-promulgation is valid.
Whether the Governor’s satisfaction under Article 213 is judicially reviewable.
Whether rights and liabilities created by an Ordinance automatically survive after it ceases to operate.
Whether earlier cases recognising automatic enduring effects were correct.

Ordinance-making is legislative in character but remains an exceptional and conditional power.
The constitutional requirement of placing an Ordinance before the Legislature ensures:
democratic accountability;
legislative scrutiny; and
control over the executive.
Re-promulgation without legislative consideration is a subversion of constitutional government.
The Governor’s satisfaction is open to limited judicial review for:
mala fides;
irrelevant considerations;
absence of relevant material; or
constitutional fraud.
An Ordinance is not identical to a permanent statute.
When it ceases to operate, its provisions ordinarily cease prospectively.
Rights do not automatically survive merely because they arose while the Ordinance was effective.
Courts must examine whether preserving particular consequences is required by:
constitutional necessity;
public interest;
irreversibility; or
fairness.

The Court held that Bihar had repeatedly bypassed the Legislature.
The subject was not a sudden emergency requiring fresh immediate action on every occasion.
The repeated Ordinances kept a major educational policy alive without legislative approval.
This was constitutionally impermissible under D.C. Wadhwa.
The majority treated laying before the Legislature as an essential constitutional safeguard.
An Ordinance is not made solely for executive convenience; its continuation must ultimately depend upon the elected House.
Failure to lay it prevents the Legislature from:
approving;
rejecting;
debating; or
holding the Government accountable.
On enduring rights, the Court rejected a broad rule that every completed act automatically survives.
Such a rule would allow the executive to create permanent legal consequences through a measure that Parliament or the State Legislature never approved.
At the same time, complete reversal may sometimes be impossible or unjust.
For example, transactions fully completed or irreversible public actions may require protection.
The Court therefore adopted a contextual approach.
In the present case, the employees could not claim permanent governmental absorption solely from a succession of invalidly re-promulgated Ordinances.
The earlier reasoning in T. Venkata Reddy, treating the consequences of an expired Ordinance almost exactly like those of a repealed Act, was disapproved to that extent.

The seven-judge Bench held that repeated re-promulgation was unconstitutional.
Ordinances must be subjected to legislative scrutiny and cannot become a substitute for enactment.
Presidential or gubernatorial satisfaction is not completely immune from judicial review.
Legal consequences do not automatically survive the lapse of an Ordinance.