Case Brief: Krishna Kumar Singh v. State of Bihar

FACTS OF THE CASE

An ordinance known as the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) was passed by the Bihar government in 1989.2. According to this ordinance, the government will now take control of 429 Sanskrit schools that are currently under private management. Because of this, a sizable number of staff members and instructors from these private schools were moved to work for the state government in a shift. This ordinance was repeatedly promulgated, but it was never brought before the state legislature and as a result, no legislation pertaining to it could ever be passed. Thus, the teachers and staff filed a petition with the Patna High Court requesting payment of their salaries and other outstanding debts.

The Patna High Court’s primary inquiry concerned whether it was unlawful or unconstitutional to re-promulgate ordinances seven times. In this decision, the High Court dismissed the petition and held that successive ordinances promulgated without a compelling reason are legally invalid1. The Patna High Court held that the re-promulgation of the ordinance by the Bihar government violates the fundamental principles of constitutionalism and is therefore illegal, based on the ruling in D.C. Wadhwa v. State of Bihar3. The High Court further ruled that 305 schools are legitimate and should receive government funding through April 30, 1992, the expiration date of the ordinance. 

 Additionally, the management of private schools would now be overseen by the same body as before the first ordinance was passed. An appeal was filed with the highest court about the order. The Apex Court’s bench of two judges also ruled that the Bihar government’s re-promulgation of the ordinance violates the fundamental principles of constitutionalism. In agreement, the supreme court declared that the entire process of enacting an ordinance is a swindle on the authority granted by Article 213 of the constitution.

 They could not agree on the first Ordinance’s validity, though, so a three-judge bench was asked to consider the case. This three-judge bench further referred the case to a five-judge bench in 1999 because they believed it raised important constitutional issues. The Krishna Kumar case was decided by the Apex court (7 Judge Bench) on January 2, 2017.

ISSUE

Do any rights, obligations, or duties imposed by an ordinance continue to exist after it is no longer in effect? 

Was the nature of the government ordinances in Bihar legally valid?

Is it mandatory for the executive branch to present the ordinance to the State Legislature and Parliament, respectively, under Article 123 or 213?

 Is it not in opposition to the fundamental principles of constitutionalism to re-promulgate an Ordinance?

ARGUMENTS

The primary point of contention between the opposing parties in this case concerned the validity of the ordinances that the executive branch had previously and persistently promoted.

In this case, the appellants requested compensation in line with the Ordinances. The appellants informed the Supreme Court that, given their designation as “government employees” under the Ordinances, they were qualified to request wages and other paychecks from the State of Bihar’s government.

They proposed that, as of the day the first Ordinance (Ordinance 32 of 1989) was put into effect, they were entitled to a salary and other benefits from the government, and that they should continue to get those benefits even after the final set of Ordinances had expired.

 The primary concern of the respondents’ research remains the possibility that decisions made in accordance with an Ordinance prior to its cessation of existence due to its denunciation by the Assembly of Legislative bodies would yield any benefit or entirely vanish. They said they would not be responsible for paying administrators and other employees whose work was concentrated in Sanskrit schools if the Ordinances proved to be too unreliable.

JUDGEMENT

The Supreme Court of India rendered a significant decision regarding the constitutional significance of re-promulgating ordinances that were thoroughly examined to answer all relevant issues.  By a vote of 5 to 2, the Honorable Bench decided that the unhindered re-promulgation of Ordinances had become unconstitutional.

The Indian Constitution’s Articles 213 and 123 grant the president or governor the authority to promulgate Ordinances, also known as absolute orders, which empower government agencies to implement regulations without the need for additional legislative approval.

In this instance, the Honorable Bench determined that the President’s and the Governor’s respective specific powers may be subject to judicial review. It further declared that it is bad for democracy to enact new ordinances without first bringing them before the legislature.

 Although a regulation temporarily possesses the same scope and force as a law, it does not grant the governor or president any additional independent authority over legislation.  Moreover, the government was required by the Constitution to submit the Ordinance to the Legislature, as stipulated in Article 213.

The following matters need to be determined by the legislative branch: i. The significance, legality, and promptness of transferring the Ordinance;

 ii. in the event that the Ordinance requires recognition;

 iii. Whether the ordinance can only be implemented if a piece of legislation is passed.

 The DC Wadhwa v. State of Bihar ruling, which determined that the re-promulgation of Regulations was deemed an infringement of the Constitution, was given particular attention by the Court. The two primary reasons why the Constitution expressly prohibits re-promulgation are as follows:

A measure such as that aims to collaborate with legislatures, which are the main body responsible for enacting regulations; and

 It is against the provisions of Articles 123 and 213, which outline requirements for the authority to enact laws.

 Even though the court decided that all of the Ordinances constitute a constitutional violation because they were not submitted to the Legislature, were re-promulgated in violation of the D.C. Wadhwa ruling, and did not grant the teachers the status of “government employee,” the government was not required to recover the compensation that had previously been paid to the teachers. The phrases “cease to continue operating” in articles 123 and 213 do not mean that the Ordinance becomes null and void immediately upon the legislature’s next six-week session or the passing of an affirmative vote of disapproval. Articles 123 and 213 separately describe the circumstances under which an Ordinance will be nullified.

ANALYSIS

The most crucial component of any legislature is debate and deliberation. The quality of democratic decisions is enhanced by these significant discussions in numerous ways. It primarily holds the government responsible for passing laws with sound justification and assertions. These discussions between the government and opposition aid in the creation of laws based on critical thinking.

 However, we frequently observe that the government degrades this constitutional scheme of deliberation by passing ordinances and then re-promulgating it. This problem was resolved, however, by the landmark Krishna Kumar judgement, which gave the courts the authority to review the ordinances, thereby enhancing their functionality and fostering transparency.

An additional beneficial outcome of this ruling is that it unequivocally maintained that the notion of re-promulgating ordinances without first presenting them to the executive branch is incompatible with the principle of parliamentary supremacy. It elevates the executive branch above the legislature. Frequently, it appears that the government has created a parallel legal system through the re-promulgation of ordinances, which is drastically at odds with the constitutional scheme. However, the Krishna Kumar ruling correctly declared this parallel legal system unconstitutional. The Court has given adequate justification for its decision to impose a check on the executive’s power, since the executives had previously periodically re-promulgated ordinances, which essentially violated a fundamental constitutional principle.

Although Justice Chandrachud’s majority decision is generally logical and well-reasoned, the opinion regarding the public interest test—which determines whether rights, privileges, obligations, etc. should prevail when the ordinance ceases to exist—is a little problematic because there may be future situations in which an ordinance would create rights, duties, and obligations that would be obviously irreversible even though giving up those rights would be in the public interest. Even though there is still a gap in the ruling, it does not impair the ruling overall. The Apex court’s ruling in D.C. Wadhwa v. State of Bihar10, which held that re-promulgating ordinances without first bringing them before the legislature is obviously against the fundamental spirit of constitutionalism, served as the foundation for much of the reasoning in the Krishna Kumar case. The judiciary has welcomed the Supreme Court’s decision to uphold the D.C. Wadhwa case, which has led to the opinion that Parliamentary supremacy over the executive will never end. It has also made it possible for courts to review the decisions made by the executive when issuing ordinances.