The president and the governor have an ordinance making power during the recess period of the parliament i.e. when the parliament is not in session. This power being often misused by the council of ministers has often been a debatable topic until this decision of the 7 judge bench in Krishna Kumar v. the State of Bihar.
The provision regarding “legislative power of the president” was even debated in the constitution assembly, where Ambedkar was not satisfied with the weak heading given to the chapter. Thus earlier the chapter was concerned with the problem of language but in the present times, this question came to evolve itself to the material question of conferment of power.
With regards to the constitutional validity of the ordinance making the power of the president, three important judgements cannot be ignored- A K Roy v/s. Union of India (1982), T Venkata Reddy v/s. State of Andhra Pradesh (1985), D C Wadhwa v/s. State of Bihar (1987). In A K Roy v/s. The Union of India while examining the constitutional validity of National Security ordinance, the court held that the ordinance making power is not beyond the scope of judicial review. Again in the case of T Venkata Reddy, the court held that the ordinance enacted by the president is on par with the legislation passed by the state and the union legislature, and thus it cannot be questioned. While in the case of D C Wadhwa, the court held that it can strike down the re-promulgated ordinance.
Under the article, 213 of the Indian Constitution, the governor can issue the ordinance when two conditions are fulfilled:
- When the legislative assembly of both the houses is not in session.
- The governor must be satisfied that circumstances exist which render it necessary for him to pass such ordinance.
Thus it is clear from the bare reading of the constitution that this ordinance making power is to be exercised in the extraordinary situations only. Article 213 of the Indian Constitution also provides that this ordinance will be treated equally to a statute of the parliament provided that it is laid down before both the houses. Practically, this ordinance making power is used as a tool by the government as an alternative to legislation. Many instances have been recorded wherein this ordinance making power was used in order to avoid arguments and deliberations and to avoid the shortcomings which are faced in the Rajya Sabha. This abuse was thus placed before the Supreme Court in Krishna Kumar case.
There were series of ordinances passed by Government of Bihar, through which the state sought to take over some 429 Sanskrit schools, transferring the teachers and all employees of the school to state government. In the year 1989, the government issued the first ordinance which was then followed by five successive ordinances. None of these ordinances was placed before the state legislature. However, the government failed to enact a statute which met a requirement of all these ordinances. Thus, the final ordinance lapsed in the year 1992. The employees and the staff of the school challenged this in the court.
By the verdict delivered by 7 Judge bench of Supreme Court in Krishna Kumar Singh v. the State of Bihar, it is now undoubtedly clear that ordinance are subject to judicial review and they do not automatically create the permanent effect. This ordinance making power of the government is generally alleged to have been abused by the government.
The judgement delivered on 2nd of January 2017 had concerned itself with the law making the power of the executive. The majority judgement delivered by Justice D.Y. Chandrachud, in the ratio of 5:2, has become a very good precedent for the future executions of democratic governance.
Justice Chandrachud in his majority opinion believed that “issuing ordinance is conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action”. Thus according to the majority decision of the court the ordinance cannot be relieved from judicial challenge.
The seven-judge bench answered two questions which were raised in the dispute- whether the ordinance passed by the Bihar government were legally valid and whether the petitioners were entitled to any legal right after the termination of the ordinance. Answering the first question, the majority opinion of the court held that every ordinary province is subject to judicial review. The bench placed reliance upon the decision rendered by nine-judge bench in the case of S. R. Bommai in the year 1994. With regards to the second question, the court did not give any heed to a theory of enduring rights. The court ruled that since ordinance is different from legislation, it does not automatically create rights and liabilities that go out of its term of operation. Thus there exists a vital difference between temporary legislation and ordinance. Justice Chandrachud mentions that when the question of what effects will survive after the ordinance is reviewed, the court must examine that whether an undoing of such an act would run counter to the public interest. Thus a test of public interest was added by Justice Chandrachud in his analysis of maintenance of rights once the ordinance ceases to operate. Thus by virtue of this 7 judge decision, the court ensured that the executive does not abuse the power vested upon them under the Indian Constitution.