![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
ABSTRACT
In Krishna Kumar Singh v. State of Bihar, the Supreme Court of India (SCI) considered the legality and repercussions of a series of re-promulgated ordinances by the Governor of Bihar. I critically analyse the judgement on four counts: conditions for valid promulgation of an ordinance, the survival of actions under failed ordinances, justiciability of executive satisfaction over necessity of promulgating an ordinance, and legality of re-promulgating ordinances. I suggest that while the SCI authoritatively establishes the conditions for valid promulgation of an ordinance, its holding on the legality of re-promulgation and the survival of actions under failed ordinances are not adequately narrow to prevent the possibility of abuse by the executive. Further, the Court’s unwillingness to apply a more searching standard of review for executive satisfaction when promulgating ordinances also does little to advance its existing jurisprudence and may prove to be unhelpful in deciding future cases where the existence of emergent conditions is in question.
Acknowledgements
The author thanks Tarunabh Khaitan and Arun Thiruvengadam for their comments on earlier drafts, Alok Prasanna Kumar for helping sharpen some of the ideas in this comment, Jhalak Kakkar for her assistance in obtaining some of the data used in this comment, and Rahul Mukherjee for help with data visualisation.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 See, generally, András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford University Press 2017).
2 Thomas Poguntke and Paul Webb, ‘The Presidentialization of Politics in Democratic Societies: A Framework for Analysis’ in Thomas Poguntke and Paul Webb (eds), The Presidentialization of Politics: A Comparative Study of Modern Democracies (Oxford University Press 2005).
3 John M Carey, ‘Legislative Organization’, in RAW Rhodes, Sarah A Binder and Bert A Rockman (eds), The Oxford Handbook of Political Institutions (Oxford University Press 2006).
4 For a comparative overview of such powers, see John M Carey and Matthew Soberg Shugart, ‘Calling Out the Tanks or Filling Out the Forms?’ in John M Carey and Matthew Soberg Shugart (eds), Executive Decree Authority (Cambridge University Press 1998).
5 245. Extent of laws made by Parliament and by the Legislatures of States.
“(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.” See, The Constitution of India 1950, art 245(1).
6 Shubhankar Dam, ‘Constitutional Fiat: Presidential Legislation in India’s Parliamentary Democracy’ (2010) 24 Columbia Journal of Asian Law 1, 8.
7 Civil Appeal 5875 of 1994 (hereinafter Krishna Kumar Singh II), Note: Unless otherwise indicated, Krishna Kumar Singh II refers to the majorityper Bobde J, Goel J, Lalit J, Chandrachud J, and Nageswara Rao J.
8 Suhrith Parthasarathy, ‘Rolling Back Ordinance Raj’ The Hindu (27 January 2017) <http://www.thehindu.com/todays-paper/tp-opinion/Rolling-back-Ordinance-Raj/article17099856.ece> accessed 12 February 2018.
9 Anon, ‘Demonetisation Decree Imperilled as Supreme Court Signals Imminent End of Ordinance Raj’ The Wire (19 January 2017) <https://thewire.in/101173/supreme-court-ordinance> accessed 12 February 2018.
10 Krishna Kumar Singh v State of Bihar (1998) 5 SCC 643 (hereinafter Krishna Kumar Singh I), [2] (Manohar J).
11 ibid [6].
12 ibid [1].
13 Krishna Kumar Singh I (n 10) [5].
14 ibid [39].
15 Krishna Kumar Singh v State of Bihar (Supreme Court of India, 17 November 2016), <http://supremecourtofindia.nic.in/jonew/bosir/orderpdf/2826325.pdf> accessed 21 January 2018; Krishna Kumar Singh v State of Bihar (Supreme Court of India, 16 November 2016), <http://supremecourtofindia.nic.in/jonew/courtnic/rop/1994/10896/rop_854847.pdf> accessed 21 January 2018.
16 The Constitution of India 1950, art 123.
123. Power of President to promulgate Ordinances during recess of Parliament.
‘(1) If at any time, except when both Houses of Parliament are in session, the President 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. (2) An Ordinance promulgated under this article shall
have the same force and effect as an Act of Parliament, but every such Ordinance –
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President…’.
17 The Constitution of India 1950, art 213.
‘213. Power of Governor to promulgate Ordinances during recess of Legislature.
(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor 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:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if –
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) 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, but every such Ordinance –
(a) 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; and
(b) may be withdrawn at any time by the Governor…’.
18 Krishna Kumar Singh II (n 7) [80(i)].
19 The conditions precedent to the valid exercise of presidential or gubernatorial power to promulgate ordinances are that the legislature should not be session and that he should be satisfied that circumstances exist which render it necessary for him to take immediate action. See: the Constitution of India 1950, arts 123 (1) (a); 213(1)(a).
20 The condition subsequent to the valid exercise of presidential or gubernatorial power to promulgate ordinances which determine its validity, is the requirement of the ordinance being laid before the legislature upon it reconvening. See: the Constitution of India 1950, arts 123 (1) (a); 213(1)(a).
21 Krishna Kumar Singh II (n 7) [80(vi)].
22 ibid [80(vii)].
23 ibid [80(xiii)].
24 ibid [68].
25 Krishna Kumar Singh II (n 7) [80(x)]-[80(xi)].
26 ibid [80(x)].
27 AIR 1987 SC 579.
28 Krishna Kumar Singh II (n 7) [80(viii)].
29 ibid [81].
30 ibid.
31 ibid [2] (Lokur J).
32 ibid [2] (Thakur CJ).
33 Krishna Kumar Singh II (n 7) [27].
34 ibid [31].
35 ibid following RK Garg v Union of India (1981) 4 SCC 675, 687 (hereinafter RK Garg).
36 ibid [31].
37 Krishna Kumar Singh II (n 7) [73].
38 ibid [32].
39 Subhash C Kashyap, Parliamentary Procedure: Law Privileges Practices and Precedents, (Universal Law Publishing Company Private Limited 2006) 16–17, quoted in Krishna Kumar Singh II (n 7) [71].
40 Rule 140, The Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha (10th edn, Bihar Vidhan Sabha, Patna), quoted in Krishna Kumar Singh II (n 7) [72].
41 Krishna Kumar Singh II (n 7) [14] (per Lokur J).
42 ibid [15] (Lokur J).
43 ibid [48].
44 Gautam Bhatia, ‘The Supreme Court’s Ordinance Judgment – II: Two Debates’ (Indian Constitutional Law and Philosophy Blog, 3 January 2017) <https://indconlawphil.wordpress.com/2017/01/03/the-supreme-courts-ordinance-judgment-ii-two-debates/≥ accessed 21 January 2018.
45 Arthur Berriedale Keith, A Constitutional History of India:1600–1935 (Methuen and Co 1936) 356, 357.
46 Pandit Hriday Nath Kunzru, 14 June 1949, Constituent Assembly Debates Vol VIII Part II.
47 RK Garg (n 35).
48 Shubhankar Dam, Presidential Legislation in India: The Law and Practice of Ordinances (Cambridge University Press 2014) 88.
49 See, The Government of India Act 1935, s 43.
50 See, ibid s 42.
51 SR Bommai v Union of India (1994) 3 SCC 1 (hereinafter, Bommai).
52 Krishna Kumar Singh II (n 7) [40].
53 Dam (n 48) 171.
54 RK Garg (n 35) [6].
55 For example, see Nagaraj v State of Andhra Pradesh AIR [1985] SC 551, where non-application of mind was held not to be a valid ground for invalidating ordinances. This proposition, as Dam argues, also rules out mala fides as a ground for challenges to the exercise of power under Article 123 or 213.
56 Dam (n 48) 179.
57 AIR 1998 Kant 91 (Karnataka High Court).
58 ibid quoted in Dam (n 48) 179.
59 Krishna Kumar Singh II (n 7) [40].
60 See, The General Clauses Act 1897, s 6:
6. Effect of Repeal
“Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- Revive anything not in force or existing at the time at which the repeal takes effect, or Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or Affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed, or Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid”.
61 Krishna Kumar Singh II (n 7) [54]:
“Section 6 in its terms applies only to a repeal. An ordinance ceases to have effect six weeks from the date on which the legislature reassembles (or upon the passing of a legislative resolution disapproving it). An ordinance which lapses upon the expiry of its tenure of six weeks from the reassembly of the legislature is not repealed as such. Repeal of a legislation results from a positive or affirmative act of the legislative body based on its determination that the law is no longer required. Repeal takes place through legislation. An ordinance lapses (‘ceases to operate’) when it has failed to obtain legislative approval by being converted into a duly enacted legislation”. See also, Dam (n 48) 141.
62 (1962) Supp (2) SCR 380 (hereinafter Bhupendra Kumar Bose).
63 T Venkata Reddy v State of Andhra Pradesh (1985) 3 SCC 198 (hereinafter T Venkata Reddy).
64 Bhupendra Kumar Bose (n 62) 4.
65 ibid 15–16.
66 ibid.
67 T Venkata Reddy (n 63) [4].
68 ibid [18].
69 Krishna Kumar Singh II (n 7) [57].
70 Dam (n 48) 143–145.
71 ibid 228–230.
72 Krishna Kumar Singh II (n 7) [57].
73 ibid [68].
74 Krishna Kumar Singh II (n 7) [58].
75 ibid [70].
76 ibid.
77 Justice Chandrachud appears to cite Dam’s work, but does not fully engage with his criticism of Krishna Kumar Singh I. See Krishna Kumar Singh II (n 7) [70].
78 Dam (n 48) 151.
79 ibid.
80 AIR 1999 Gau 32 (Gauhati High Court).
81 ibid [18].
82 See Dam (n 48) 146.
83 Reliance Energy v Maharashtra State Road Development Corporation (2007) 8 SCC 1.
84 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 at [60] (Lord Hoffmann).
85 State of West Bengal v Niranjan Sangha (2001) 2 SCC 326.
86 Municipal Corporation, Chandigarh v Shantikunj Investment (2006) 4 SCC 109; R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363.
87 Devesh Kapur and Pratap Bhanu Mehta, ‘The Indian Parliament as an Institution of Accountability’ (2006) 23 Democracy, Governance and Human Rights Programme Paper < https://casi.sas.upenn.edu/sites/casi.sas.upenn.edu/files/bio/uploads/The%20Indian%20Parliament.pdf> accessed 12 March 2018.
88 Mahendra Prasad Singh, ‘The Decline of the Indian Parliament Journal’ (2015) 14 India Review 352.
89 Aparna Chandra, ‘Book Review, Presidential Legislation in India: The Law and Practice of Ordinances by Shubhankar Dam’ (2017) 12 Asian Journal of Comparative Law 203, 204–205.
90 Data and representation obtained upon request from PRS Legislative Research (on file with the author).
91 Pratik Datta and Rajeswari Sengupta, ‘Why a Parliamentary Act – or Ordinance – is needed for Demonetisation’ Scroll (28 December 2017), <https://scroll.in/article/823126/why-a-parliamentary-act-or-ordinance-is-needed-for-demonetisation> accessed 21 January 2018.
92 Showkat Shafi, ‘100 days of Demonetisation: Stories of Hardship’ Al Jazeera (16 February 2017), <https://www.aljazeera.com/indepth/features/2017/02/100-days-demonetisation-stories-hardship-170215154335682.html> accessed 21 January 2018.
93 Indivjal Dhasmana, ‘Demonetisation, GST Effects: GDP Growth seen at 4-year Low of 6.5%’ Business Standard (6 January 2018) < http://www.business-standard.com/article/economy-policy/demonetisation-gst-effects-gdp-growth-to-fall-to-6-5-for-fy18-118010501096_1.html> accessed 21 January 2018.
94 Anon, ‘Specified Bank Notes Bill Lok Sabha Passes Specified Bank Notes Bill’ Financial Express (8 February 2017) <http://www.financialexpress.com/economy/specified-bank-notes-bill-lok-sabha-passes-specified-bank-notes-bill/541715/> accessed 21 January 2018.
95 Anon, ‘Demonetisation: Read Nine Questions Referred to Constitution Bench’ LiveLaw (16 December 2016) <http://www.livelaw.in/demonetisation-read-nine-questions-referred-constitution-bench-read-order/> accessed 21 January 2018.
96 Anon, ‘Why the Enemy Property Ordinance Needed Parliament’s Reconsideration The Wire (26 December 2016) <https://thewire.in/89572/pranab-mukherjee-enemy-property-ordinance/> accessed 21 January 2018.
97 Eric Posner and Adrian Vermule, ‘Tyrannophobia’ in Tom Ginsburg (ed), Comparative Constitutional Design (Cambridge University Press 2012).