Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Bench

A 7-Judge Constitution Bench of the Supreme Court:

1. T.S. Thakur, C.J.
2. D.Y. Chandrachud, J.
3. Madan B. Lokur, J.
4. S.A. Bobde, J.
5. A.K. Goel, J.
6. U.U. Lalit, J.
7. L. Nageswara Rao, J.

Facts

• The case involved a series of ordinances issued by the Government of Bihar regarding the takeover of 429 Sanskrit schools and transferring their teachers and staff to the State Government.
• The first ordinance was promulgated in 1989, followed by five successive ordinances.
• Each ordinance lapsed after six weeks from the reassembly of the legislature, but the government kept issuing new ordinances instead of passing a law.
• The last ordinance lapsed in 1992, leaving the status of teachers and employees uncertain.
• The teachers challenged this action in the High Court, claiming that their services as government employees should be regularized even after the ordinance expired.
• The High Court ruled that the re-promulgation of ordinances was unconstitutional and that the employees had no legal right to claim government jobs.

Issues

1. Can the Governor repeatedly re-promulgate ordinances without placing them before the legislature?
2. Do rights and obligations created by an ordinance continue even after it lapses?
3. Was the Bihar Government’s practice of re-promulgating ordinances a violation of the Constitution?

Ratio Decidendi (Legal Principle)

• Re-promulgation of ordinances is unconstitutional: The Supreme Court held that ordinances cannot be used as a substitute for legislation. Successive re-promulgation without legislative approval is a fraud on the Constitution.
• Temporary nature of ordinances: An ordinance has the same effect as a law, but it must be approved by the legislature within six weeks of reassembly. If it is not approved, it ceases to operate.
• No enduring rights from an ordinance: The Court ruled that ordinances do not create permanent rights or obligations. Once an ordinance lapses, any benefits derived from it also lapse, unless protected by a law passed by the legislature.

Observations

• Ordinances should be an exception, not a rule: The ordinance-making power is not meant to be a substitute for legislative law-making. It is intended for emergency situations.
• Judicial Review of Ordinances: The Governor’s satisfaction in issuing an ordinance is subject to judicial review. Courts can examine whether the ordinance was issued to bypass legislative authority.
• Legislature’s Role: The legislature must have the opportunity to discuss and approve laws. Re-promulgation without legislative approval undermines democracy.

Decision

• The Supreme Court held that the repeated re-promulgation of ordinances by the Bihar Government was unconstitutional.
• The ordinances ceased to operate after six weeks, and no permanent rights were created for the employees.
• The petitioners (teachers and staff) were entitled to salaries only until the last ordinance expired in 1992, but they had no right to be treated as permanent government employees.
• The practice of re-promulgating ordinances was declared a “fraud on the Constitution” and must not be continued in the future.

Important Terms

1. Article 213 (Governor’s Ordinance-Making Power)

• Allows the Governor to issue ordinances when the legislature is not in session.
• An ordinance has the same force as a law but must be approved within six weeks of reassembly.
• If not approved, the ordinance ceases to operate.

2. Re-Promulgation of Ordinances

• The repeated issuance of ordinances without legislative approval is called re-promulgation.
• The Court held that re-promulgation is unconstitutional and cannot be used to bypass the legislature.

3. Doctrine of Separation of Powers

• The Constitution divides powers among the legislature, executive, and judiciary.
• Legislation is the function of the legislature, and the executive (Governor) cannot take over this role through ordinances.

4. Judicial Review of Ordinances

• The Governor’s decision to issue an ordinance can be challenged in court.
• The Court can strike down ordinances that violate constitutional principles.

5. Fraud on the Constitution

• The Court declared that re-promulgation of ordinances without legislative approval is a fraud on the Constitution.
• It violates democratic principles and legislative supremacy.