February2017 View this email in your browser
ORDINANCES AND THEIR CONSEQUENCES
A seven judge bench of the Supreme Court recently
passed a judgment in Krishna Kumar Singh and
Another v. State of Bihar and Others, holding that
actions taken under an ordinance will not necessarily
survive if the ordinance lapses or ceases to operate.
It has been a recent trend in various states in India
as well as at a Central Government level for the
government to seek to impose laws without going
through the constitutionally prescribed mechanism of
having Parliament or the legislature pass the laws; the government seeks to circumvent this procedure by
issuing ordinances instead. Krishna Kumar Singh is therefore an extremely significant judgment, because it
considers whether such ordinances, applicable to all persons, companies and organisations, can create
lasting rights.
The practical impact of this judgment is that the
rights of persons and companies under any ordinance Krishna Kumar Singh is an
issued by the government may not be permanent and
extremely significant judgment,
may only persist for the duration of the ordinance.
Unless the legislature enacts a statute incorporating because it considers whether
the same rights as are available under the ordinance,
ordinances, applicable to all
there is always a chance that the rights may abate
once the ordinance lapses. persons, companies and
To give an example of what this means in practice, organisations, can create
we can look at the Maharashtra Land Revenue Code lasting rights.
(Amendment) Ordinance, 2017. This ordinance
provides (among other things) that certain categories of land in Maharashtra will be deemed to be
converted to different uses if dues specified in the ordinance have been paid in respect of such land. The
consequence of the Krishna Kumar Singh judgment is that any such deemed conversion of land under the
Maharashtra Land Revenue Code (Amendment) Ordinance, 2017 may not be permanent – the land may
revert to its earlier status after the ordinance ceases to operate, unless the terms of the ordinance are
subsequently incorporated in a statute.
What is an ordinance?
Under the Indian Constitution, an ordinance is a special kind of executive decision (issued
by a Governor or President on the advice of the State or Central Government respectively)
that operates as a law. Although lawmaking power usually lies with the legislative branch
of the government, the executive is given the power to issue ordinances in exceptional
situations, with the ordinances remaining in force for a limited period of time.
The legislature can enact a law incorporating the provisions of an ordinance. However, the legislature can
also pass a resolution disapproving the ordinance, in which case the ordinance will cease to operate. The
legislature can also choose to do nothing, in which case the ordinance will lapse within six weeks from the
beginning of the next session of Parliament or the relevant State Legislature.
What were the issues in dispute in the case?
The Krishna Kumar Singh case related to ordinances promulgated (issued) by the Governor of Bihar (on the
advice of the Bihar State Government). Between 1989 and 1992, the Governor promulgated as many as
seven ordinances allowing the State Government to take over of the management and control of Sanskrit
schools in the state. As each ordinance was about to lapse, the Governor would promulgate a fresh
ordinance with similar provisions (repromulgate the ordinance), allowing the ordinance to continue in force
for over two years, finally lapsing in April 1992. Although the Bihar State Legislature was in session a
number of times over those years, the ordinance was never placed before them, nor was any bill
incorporating the provisions of the ordinances.
On a dispute raised by the employees of the schools that were taken over, the Supreme Court was called
on to decide whether the ordinances promulgated and repromulgated were valid. The court was also asked
to decide whether the employees of the schools that were taken over would remain government employees
although the ordinances had lapsed (i.e., whether the rights created by the ordinances would survive the
ordinances).
What did the Supreme Court decide?
The Supreme Court decided that the ordinances were invalid. The court held that legislation by ordinances
is not an ordinary source of lawmaking. Ordinances can only be promulgated in emergent or exceptional
situations, and only while the legislature is not in session. Further, the Constitution requires that ordinances
must be compulsorily presented before the legislature. The repeated repromulgation of an ordinance is
evidence that the executive is trying to overstep its constitutional boundaries with the ordinance, and the
court is permitted to strike down any such ordinance.
The Supreme Court also decided that even if the
All actions taken under an ordinances had been valid, the employees of the
schools would not have remained government
ordinance should be taken with
employees once the ordinances had lapsed. The
due caution and after obtaining court held that “whether rights, privileges, obligations
and liabilities would survive an ordinance which has
appropriate legal advice.
ceased to operate is a matter of construction”. To
decide whether or not rights will continue, courts are
required to apply a test of public interest and constitutional necessity, including considering the issue of
whether the actions that have taken place under the ordinance are irreversible. Courts must adopt an
interpretation which furthers the basic constitutional premise of legislative control over ordinances.
Conclusion
Whether rights or privileges acquired under an ordinance will survive the ordinance is therefore a matter for
courts to consider on a casebycase basis. In addition, an ordinance that is issued repeatedly by a State
Government or the Central Government without any attempt to enact a law incorporating the terms of the
ordinance is likely to be held invalid if challenged in court. While all persons are required to comply with an
ordinance while it remains in force, there is no future guarantee of any rights or privileges that are granted
under an ordinance; all actions taken under an ordinance should be taken with due caution and after
obtaining appropriate legal advice.
By Krishna Hariani
Editor: Trupti Daphtary
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