Re-promulgation of ordinances is fraud on the Constitution: Supreme Court
New Delhi: A seven-judge Constitution Bench of the Supreme Court on Monday held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
The Bench headed by Chief Justice T.S. Thakur by a majority also held that the satisfaction of the President under Article 123 and of the Governor under Article 213 while issuing ordinances is not immune from judicial review. The issue arose in a batch of cases relating to successive ordinances promulgated by Bihar government appointing school teachers who were later not regularised following lapse of ordinances.
The bench ruled that 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 majority Judgment authored by Justice DY Chandrachud held that the requirement of placing the ordinance before the Legislature is mandatory. While Justice Madan B Lokur observed that per se it is not mandatory as there will be several circumstances when it will not be possible to place the same before the legislature, the CJI left the question open to be decided in appropriate proceedings.
The majority judgment held that 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; 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.
It said 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; 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 egislature 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).
The court held that failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process; Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes. The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review and the court will scrutinise whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. The court held that salaries already paid to the teachers should not be recovered.
