KRISHNA KUMAR SINGH V. STATE OF BIHAR (2017) 3 SCC 1

KRISHNA KUMAR SINGH V. STATE OF BIHAR (2017) 3 SCC 1

 

FACTS

The Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) ordinance was passed by the Bihar government in 1989.2 According to this decree, the government would now assume ownership of 429 privately run Sanskrit institutions in total. Due to this, a significant number of staff members and teachers who worked for these private schools were transferred to work for the state government in a single shift. This ordinance was often re-promulgated, but no law relating to it was ever passed because it was never even once introduced in the state legislature. As a result, the instructor and other employees filed a suit with the Patna High Court asking for the payment of their salaries and other debts.

The Patna High Court addressed a crucial question regarding the legality and constitutionality of re-promulgating ordinances multiple times. In its ruling, the High Court concluded that repeatedly issuing ordinances without a compelling reason is not legally valid. The Court drew on the precedent set in the D.C. Wadhwa v. State of Bihar case, asserting that the fundamental principles of constitutionalism are violated by the Bihar government's re-promulgation of ordinances, rendering it unconstitutional. The High Court also determined that 305 schools are legitimate and entitled to receive government-provided salaries until April 30, 1992, which was the final date of validity for the ordinance.

Furthermore, private school management would be subject to the same regulations that were in place before the initial ordinance was promulgated. An appeal was made to the apex court challenging this decision. A two-judge panel of the apex court concurred with the High Court's finding that the re-promulgation of ordinances by the Bihar government violated constitutional principles. They jointly concluded that the entire process of enacting ordinances amounted to an abuse of the authority granted by Article 213 of the Constitution.

However, they disagreed on the validity of the first ordinance, prompting the matter to be referred to a three-judge panel. In 1999, this panel further referred it to a five-judge bench, deeming the case to raise significant constitutional questions. On January 2, 2017, a seven-judge bench of the apex court decided the Krishna Kumar case.

 

ISSUES:

These are fundamental questions related to the legal status and implications of ordinances:

1. Will any rights, duties, or obligations established by an Ordinance persist even after that specific ordinance becomes inactive?
2. Was the series of ordinances enacted by the Bihar government legally valid in its essence?
3. Do Article 123 or 213 impose a compulsory duty on the executive to lay the ordinance before the Parliament and State Legislature, respectively?
4. Does the re-promulgation of an Ordinance run counter to the fundamental principles of constitutionalism?

 

JUDGMENT-

In this case, the Supreme Court delivered a significant verdict on the issue of re-promulgation of ordinances, referencing the precedent set in DC Wadhwa v. State of Bihar. The Court held, with a majority ratio of 5:2, that re-promulgating ordinances is contrary to the foundational principles of constitutionalism. Two key reasons supported this stance:

1. The intended purpose of the power granted in Article 213 and 123 to the Governor and President, respectively, for issuing ordinances is undermined.
2. Such re-promulgation circumvents the highest legislative authority (the Legislature).

The Court emphasized that Article 213 and 123, which confer authority to the President and Governor to promulgate ordinances, are subject to judicial scrutiny. Additionally, since the executives are collectively accountable to the Parliament or State Legislature, this authority is under the control of the legislature. The Court explicitly stated that not presenting ordinances before the legislature and instead re-promulgating them constitutes a clear misuse of the law and undermines the legislative process of law-making by both the Parliament and State Legislature.

Justice D.Y. Chandrachud, authoring the majority judgment, emphasized that the power to promulgate ordinances by the President and Governor should only be exercised when the legislature is not in session, and it is a conditional power.

The judgment clarified that it is a constitutional obligation for the government to lay down ordinances before the legislature. This allows the legislature to decide on:

1. The necessity, validity, and expediency of issuing the Ordinance.
2. Whether the Ordinance should be ratified.
3. Whether a statute should be enacted in furtherance of the Ordinance.

The Court ruled that all ordinances repeatedly re-promulgated without being presented before the Legislature are in violation of constitutionalism. Consequently, the salaries already disbursed to teachers should not be reclaimed, as they were not granted the status of government teachers.

The Chief Justice at the time, T.S. Thakur, concurred, emphasizing that the interpretation of Article 123 and 213 should remain open, acknowledging scenarios where re-promulgation might be necessary without immediate presentation before the state legislature.

Justice Lokur Madan, however, held a divergent opinion, asserting that it is not obligatory for an ordinance promulgated by the President/Governor to be placed before the legislature. He argued that as an ordinance carries the force of law, its validity cannot be contested based on whether it was laid before the legislature or not. He also disagreed with certain established judgments and contended that an enduring right theory cannot be established for a citizen. In conclusion, the Court ruled that the first three ordinances were valid, and the benefits extended to employees until the cessation of these ordinances were legitimate. The employees do not acquire any enduring rights from these ordinances. The Court also affirmed the High Court's directions regarding salary and interest.