Placing Ordinance before Legislature Mandatory; Re-promulgation Fraud On Constitution: SC 7 Judge Bench [Read Judgment]

A seven-judge Constitution Bench of the Supreme Court in Krishna Kumar Singh vs. State of Bihar has held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. In this context, the Chief Justice of India, in his separate concurring opinion, observed: “I would, in that view, leave the question of interpretation of Articles 123 and 213 in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open.” Summary of the majority Judgment authored by Justice DY Chandrachud The power which has been conferred upon the President under Article 123 and the Governor under Article 213 is legislative in character. The power is 133 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 be laid before the legislature; and it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn; The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213; The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority; Consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control. Laying of the ordinance before the legislature is mandatory because the 134 legislature has to determine: The need for, validity of and expediency to promulgate an ordinance; Whether the Ordinance ought to be approved or disapproved; Whether an Act incorporating the provisions of the ordinance should be enacted ; The 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, as laid down in the judgment of the Constitution Bench in D C Wadhwa; Article 213 provides that an ordinance promulgated under that article shall “cease to operate” six weeks after the reassembling of the legislature or even earlier, if a resolution disapproving it is passed in the legislature.