THE EFFECT OF ORDINANCE UPON THE ANVIL OF THE CONSTITUTION: A JUDICIAL HOTHOUSE

THE EFFECT OF ORDINANCE UPON THE ANVIL OF THE CONSTITUTION: A JUDICIAL HOTHOUSE

ILE Legal Blog

15 Jul, 2022

Author – Pranav Pathak, Student from Hidayatullah National Law University, Raipur

INTRODUCTION: THE DOPE SHEET

The “Ordinance Raj” has jumped on the bandwagon. The Art 123 and 213 of the Constitution envisages this scheme for union executive and state executive respectively. However any ordinance is wired with the rights, privileges, obligations or liabilities which arise under an ordinance. Thus the effects of an ordinance becomes a significant piece of conversation.

The story begins with an ordinance, passed by the Bihar Government in 1989, “The Bihar Non-Governmental Sanskrit Schools (Taking over of Management and Control) Ordinance.” The first Ordinance was followed by a series of others. Surprisingly, they were never tabled before the State Legislature. The Court condemned this practice of Ordinance Raj in trenchant words in Krishna Kumar Singh v.  State of Bihar. After all, re-promulgation is a violation of the Constitution and undermines democratic value. However, the bone of contention was “whether the rights, privileges, obligations or liabilities which arise under an ordinance which ceases to operate, will also cease to operate.” 

THE THEORY OF ENDURING RIGHTS: A JUDICIAL FOOTBALL

Ordinance and its effect has always been a headache for the judiciary due to the constitutional silence on the matter. The crucial question is whether the rights, privileges, obligations or liabilities which arise under an ordinance which ceases to operate, will also cease to operate. Thus, the theory of enduring rights comes into picture. 

Discrepancies in the outlook of the Judiciary are loud and clear. The trail of judicial pronouncements began with State of Orissa v. Bhupendra Kumar Bose, where the apex court conceded the theory and expressed that the rights accrued by the ordinance must be held to endure and remain in life even after the expiry of the ordinance. This outlook was reiterated in the T. Venkata Reddy v. State of Andhra Pradesh. However the Gauhati High Court flies in the face of the above outlooks, and observed that as the parliament didn’t pass the necessary law, the ordinance would lapse and, accordingly, the rights vested by the ordinance would also lapse in the case of Maitreyee Mahanta v. State of Assam.

THE KRISHNA KUMAR JUDGMENT: SETTLED THE ROCKING BOAT

The Krishna Kumar case settles the rolling ball of theory of enduring rights to a significant extent. Although the judgment rejected the theory of enduring rights after establishing a contrast between an Ordinance and a temporary enactment, unlike the prior judgments, the gift of Krishna Kumar was the trinity of tests. Thus, the judiciary adopted a middle path to settle the dust.

Ordinance v. Temporary Act: A Battle of Status

This is beyond any doubt that an ordinance promulgated by the executive in shadow of Art 123, if it is central executive, and Art 213, if it is state executive, may have the same effect as an Act passed by the competent Legislature, and the function of two may be at same footing, yet there exits vital differences between the two. This leads to a battle of status to ascertain the correct constitutional position. Ordinance is not at all equivalent to Temporary Act.

  • Phraseology of Constitution draws a bright line of distinction

The Constitution itself draws a line of distinction between an Act and an Ordinance from the phraseology of the concerned articles. Ordinances are promulgated by the executive, whereas an act can be enacted by the competent legislation. If it is a temporary enactment, the legislature specifies the period during which it will be enacted. It is completely within the domain and authority of the legislature to enact an Act temporarily. However, the ordinances are not blessed with the nod of Legislatures. It is conditioned by specific requirements which are explicitly mentioned in Art 123 and 213. A similar line of reasoning has been explicitly subscribed by the apex court in the case of Krishna Kumar.

  • Executive is not pari passu to Legislative

There is a bright line of distinction between the executive and the legislative. However this outlook was not subscribed to in a couple of earlier judicial pronouncements. The Supreme Court seems to have gone too far in immunizing an ordinance, and held the executives and the legislatives at equal footing in the cases of T. Venkata Reddy v. State of Andhra Pradesh and K. Nagaraj v. State of Andhra Pradesh. The outlook of equating the two was not subscribed by the apex court in subsequent rulings. In the cases of S. R. Bommai v. Union of India, and Rameshwar Prasad v. Union of India, it can be inferred that the Court doesn’t see the executive and the legislative from the same lenses, where the court considered that every executive action, unlike legislative action, is subject to judicial review. The similar outlook was reiterated in Gyanendra Kumar v. Union of India.

The argument of equating executive with legislative can’t be subscribed by the virtue of Separation of Power that explicitly draws lines between different organs of the government. Separation of power envisages the domain of power of everybody that has to reside within it. Thus, Legislation by the Executive is not pari passu with legislation by the Legislature.

  • Legislative Tops In a hierarchical Comparison: Supremacy of Parliament

The judgment of T. Venkat Reddy disregarded the supremacy of parliament. The judgment had given privileged position to the ordinance, as it accepted the theory of enduring rights and asked for retrospective legislation from the parliament to reverse the effect of the ordinance. This evidently undermines the parliament, despite the fact that the Indian Parliament is prime and supreme in character for the enactment. The supreme position of parliament is explicitly opined in Umeg Singh v. State of Bombay. This disregard of parliament has been explicitly acknowledged by the Supreme Court in the ruling of Krishna Kumar, and held that the position of parliament can’t be subordinated at all. Thus, putting ordinance at equal footing to temporary enactment would lead to utterly wrong conclusion that the Parliament is not supreme.

No Room for Theory of Enduring Rights: Bereft of Saving Clause

It is never late to mend. The crucial judgment of Krishna Kumar v. State of Bihar settled the dust. The ruling negated the subscription to the theory of enduring rights. Even, the phraseology of the articles pertaining to Ordinances was under the hammer in the case of Krishna Kumar. The Court significantly noted the fact that the bare provision doesn’t contain any specific provision for saving the rights, privileges, obligations or liabilities accrued from the ordinances, despite the fact that such saving clauses were in the contemplation of the Constitution framers. This is evident from Art 358(1) and Art 359(1)(A) that are blessed with such a saving clause.

Thus, it is held that the rights, privileges, obligations or liabilities accrued from the ordinances are not at all enduring rights. The theory of enduring rights is utterly unconstitutional in light of parliamentary supremacy. It seems like bypassing the parliament and accrue the rights, privileges, obligations or liabilities through the executive order. As a consequence, the parliament will lose its control and supremacy over the executive. Although the story is not over.

A Trinity of Tests: DC Wadhwa, A Torch Bearer

The apex court refuted the outlook of “void ab initio” with regard to untabled or rejected ordinances before the legislature. The court adopted a middle path. The rights, privileges, obligations or liabilities accrued from an Ordinance do not outrightly cease to operate immediately after the Ordinance ceases to operate without any ifs and buts. Rather the Court observed a trinity of tests in the light of D. C. Wadhwa v. State of Bihar. J. Sujata Manohar aptly portrayed the picture and held that the consequence of an ordinance might be considered permanent when it is irreversible or when reversing it would be exceedingly impracticable or against the public interest. The apex court reiterated this ruling in Gurudevdutta VKSSS Maryadit v. State of Maharashtra. This leads to a trinity of tests, which was acknowledged by the apex court in the judgment of Krishna Kumar. As a consequence, a trinity of tests has been opined: the first is the irreversibility of effect; the second is the impracticality of reversing a consequence that has occurred as a result of the ordinance; and the third is the public interest test.

CONCLUSION

Ordinance and its effect has always been a headache for the judiciary due to the constitutional silence on the matter. The crucial question of the theory of enduring rights has been a playground for judicial football until the judgment of Krishna Kumar settled the rocking boat. In contrast to previous judgments, the ruling reached a different conclusion on the matter and rejected the doctrine of enduring rights after creating a distinction between an Ordinance and a temporary enactment. Putting ordinance at equal footing to temporary enactment would lead to utterly wrong conclusion and undermine the supremacy of the Parliament. Dust seems settled to the point that the rights, privileges, obligations or liabilities accrued from the ordinances are not at all enduring in nature. Rather the Court observed a trinity of tests in the light of D. C. Wadhwa. Putting a long story short, the judiciary has denied subscribing to the theory of enduring rights, rather came up with a trinity of tests, which seems appropriate construction.