A 7-judge Constitution bench has held that unfettered re-promulgation of ordinances is not permissible by the Constitution.
In 1989, the Bihar government passed the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance. The Ordinance provided for the taking over of 429 Sanskrit schools in the state of Bihar. The services of teachers and other employees of the school were to stand transferred to the state government. The first Ordinance was followed by a succession of Ordinances. None of the ordinances were placed before the state legislature.
As a result of these ordinances, teachers employed in the said schools claimed to have been given the status of Government employees and therefore claimed salary from the Government. On this basis, they filed a writ petition, to claim their salaries, before the Patna High Court. The question was whether seven successive re-promulgations of this Ordinance suffer from any illegality or constitutional impropriety. The High Court of Patna dismissed the writ petition and held that the repeated re-promulgation of the ordinances was unconstitutional. The High Court relied on the Constitution Bench decision in D.C. Wadhwa and Ors. v. State of Bihar and Ors. [(1987) 1 SCC 378].
The decision was appealed before a two-judge bench of the Supreme Court in 1998. Both the judges – Justice Sujata Manohar and Justice D P Wadhwa – held that the re-promulgated Ordinances were invalid. However, they differed on the decision as to whether the first ordinance was valid or not. Thus, they referred the matter to a 3 judge bench. In 1999, the Bench of three judges referred it to a Bench of five judges as it raised substantial questions relating to the Constitution. On 23rd November 2004, the matter was referred to a larger Bench of seven judges.
On 2nd January, 2017, a seven-judge Constitution Bench of the Supreme Court held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. The majority Judgment, authored by Justice DY Chandrachud, held that the requirement of placing the ordinance before the Legislature is mandatory; Justice Madan B Lokur observed that it is directory; Justice Thakur, the Chief Justice of India as he was then, in his separate concurring opinion, preferred to leave the ‘question of interpretation of Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the ordinance before the Parliament/legislature open.
Whether Article 213 of the Constitution confers a mandatory obligation on the Executive to table an ordinance before the Legislature?
Whether re-promulgation of an ordinance is permissible as per the Constitution?
Whether an act through an ordinance remains valid even after the ordinance ceases to operate?