Dr.

Ram Manohar Lohiya National Law University,

Lucknow

ACADEMIC SESSION: 2016-17

CONSTITUTIONAL LAW II
TOPIC: ORDINANCE MAKING POWER OF EXECUTIVE AND
JUDICIAL REVIEW

SUBMITTED TO: SUBMITTED BY:

MR.ATUL KUMAR TIWARI; NAYANIKA RAWAT

MISS ANKITA YADAV
ASST. PROFESSOR (LAW) B.A LL.B (Hons.)
DR. RAM MANOHAR LOHIYA 4th SEMESTER
NATIONAL LAW UNIVERSITY. ROLL NO: 89
TABLE OF CONTENTS
INTRODUCTION .................................................................................................................................. 3
JUDICIAL REVIEW OF SATISFACTION OF THE PRESIDENT ..................................................... 4
REPROMULGATION OF ORDINANCES ......................................................................................... 11
IS IT MANDATORY TO PLACE ORDINANCE BEFORE LEGISLATURE? ............................. 14
EFFECTS OF ORDINANCES ............................................................................................................. 16
CONCLUSION ..................................................................................................................................... 20
INTRODUCTION
The ordinance making power of the executive is enshrined in our constitution. It empowers
the executive to make laws, to meet certain exigencies and emergencies, when the parliament
is not in session. The Article 123 and the article 213 of the Constitution empower the
President and the governor of a state respectively to promulgate ordinances. 1 The ordinances
often face criticism on the grounds that they are promulgated by the governments to fulfil
their selfish ends and to evade the process of debate, discussion and deliberation through
which a bill goes in legislature. This provision has been drawn from Article 42 and 43 of
Government of India Act, 1935 which gave Governor General power to promulgate
ordinances. The President while exercising his power to promulgate ordinances has to work
on the aid and advice of the Council of Ministers. This power to promulgate ordinances is not
the executive or administrative action but is the legislative power of the executive which is
extraordinary in nature and can be exercised only when the parliament is not in session and
there is an imminent need to pass a law to meet an emergency.2

The rider attached with this power that an ordinance can only be promulgated on the
satisfaction of the president that there was a necessity to pass law is seldom fulfilled. Most of
the times ordinances are just passed to evade the debate and discussion in legislature and thus
to fulfil the ill fed motives and time and again have been named as Ordinance Raj.
Ordinances have been used to surpass the parliamentary supremacy and thus have been
challenged as fraud to the constitution. This power of the executive is subject to judicial
review and legislature. Article 213 and 123 says that these ordinances shall be placed before
the legislature on its reassembly. This project deals with whether it is mandatory to place
these ordinances before the legislature on its reassembly or not? It deals with whether this
power of executive is subject to judicial review and to what extent. This project further deals
with the status of re promulgation of ordinances and if the consequences and effects of the
ordinance when it ceases could be reversed and status quo can be maintained? This project
focuses on the role played by judiciary to limit the ordinance making power of the executive
and preventing its misuse.

1
Constitutuion of India
2
Article 123
JUDICIAL REVIEW OF SATISFACTION OF THE PRESIDENT

Section 72 of the Government of India Act 1935, authorised the Governor-General to make
and promulgate ordinances for the peace and good government of British India ‘in case of
emergency’. In Bhagat Singh v King Emperor3 Lord Dunedin observed that it is only the
Governor -General who can judge that whether the state of emergency existed or not. In
Lakhi Narayan v State of Bihar4, the Federal Court had observed that whether the requisite
circumstances existed for promulgating the ordinance was a ‘matter which is notwithin the
competence of courts to investigate. The language of the provision shows clearly that it is the
Governor and Governor alone who has got to satisfy himself as to existence of circumstances
necessitating the promulgation of an ordinance. The existence of necessity is not a justiciable
matter which the courts could be called upon to determine by applying an objective test. In
King Emperor v Benoari Lal5 the Privy Council emphasized that the Governor-General was
not required by the constitutional provision to state that there was an emergency, or what the
emergency was, either in the text of the ordinance or at all, and assuming that “he acts bona
fide and in accordance with his statutory powers it cannot rest with the courts to challenge his
view that the emergency exists.”

In S.K.G Sugar Ltd. v State of Biha6r the Supreme Court stated as regards Governor’s
satisfaction to make an ordinance under Art.213 (which is similar to Art.123) that “necessity
of immediate action and of promulgating an ordinance is a matter purely for the subjective
satisfaction of the Governor. He is the sole judge as to the existence of the circumstances
necessitating the making of an ordinance. His satisfaction is not a justiciable matter. It cannot
be questioned on the ground of error of judgement or otherwise in a court.”

In R.C Cooper v Union of India7 the constitutional validity of the Banking Companies (
Acquisition and Transfer of Undertakings) Ordinance, 1969, was challenged. By this
ordinance, the Central Government nationalised a number of private banks. The bench of
eleven Judges of this Court held that the presidential power to promulgate an ordinance is
exercisable in extraordinary situations demanding immediate promulgation of law. This
Court held that the determination by the President was not declared to be final. Justice J C

3
58 I.A. 169,172.
4
AIR 1950 FC 59.
5
72 I.A,169,172.
6
AIR 1970 SC 564.
7
AIR 1970 SC 564.
Shah speaking for the court observed “Power to promulgate such Ordinance as the
circumstances appear to the President to require is exercised--(a) when both Houses of
Parliament are not in session; (b) the provision intended to be made is within the competence
of the Parliament to enact; and (c) the President is satisfied that circumstances exist which
render it necessary for him to take immediate action. Exercise of the power is strictly
conditioned. The clause relating to the satisfaction is composite: the satisfaction relates to
the existence of circumstances, as well as to the necessity to take immediate action on
account of those circumstances. Determination by the President of the existence of
circumstances and the necessity to take immediate action on which the satisfaction
depends, is not declared final.”/.

In this case Justice Ray in his minority opinion ruled out that the satisfaction of the President
is subjective in nature and it could be challenged on the ground of corrupt motive , bad faith
or mala fide.

The Constitution (Thirty Eighth Amendment) Act, 1975 was brought into force on 1 August
1975 during the period of the internal emergency. The amendment introduced, among other
things, two crucial provisions into Articles 123 and 213 by which the satisfaction of the
President or, as the case may be of the Governor, was declared to be final and conclusive and
to be immune from being questioned “in any court on any ground”. Clause 4 of Article 123
provided as follows :

“24….Notwithstanding anything in this Constitution, the satisfaction of the President

mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court
on any ground.”

By a similar amendment, clause 4 was introduced into Article 213. The effect of the
amendment was to grant immunity from the satisfaction of the President or the Governor
being subjected to scrutiny by any court. This amendment was expressly deleted by Section
16 of the Forty-fourth amendment.8 In A.K Roy v Union of India9 the question of judicial
review of the President’s satisfaction to promulgate the National Security Ordinance, 1980,
providing for preventing detention was raised. The Supreme Court left the question open
whether the satisfaction under Article 123 (1) is justiciable or not. The Court did say however
that it was arguable that “judicial review is not totally excluded in regard to the question

8
http://indiacode.nic.in/coiweb/amend/amend44.htm
9
(1982) 1 SCC 271.
relating to the President’s satisfaction.” As to whether the preconditions to the exercise of
power under Art.123 have been satisfied or not cannot be regarded as a purely political
question and kept beyond judicial review. In the instant case, since the ordinance was
replaced by an act the question did not go into question of the President’s satisfaction to issue
an ordinance in question. The Court did however observe that the power to issue an ordinance
is not meant to be issued recklessly or under imaginary state of affairs or mala fide against
the normal legislative process.

The Supreme Court however in the case S.R Bommai v Union of India10 held in respect to
Article 356 ,which also requires the satisfaction of the President for the proclamation of
emergency , that the proclamation can be challenged on the ground of malafides or that it is
based on wholly extraneous and irrelevant ground.

10
1994 AIR 1918, (1994) 3 SCC 1.
There are two lines of approaches in Indian judiciary regarding the judicial review of the
satisfaction of the President or Governor on the basis of motive to pass that ordinance.The
first approach which is followed since British India is that ordinances are the legislative
function of executive and not the executive function and therefore they lie on the same
footing as an Act of legislature. As an Act of legislature cannot be questioned on the grounds
of motive behind the legislature for passing that act so therefore, an ordinance also enjoys the
same immunity. Therefore, the motive of the President or Governor and his satisfaction,
whichever is the condition, cannot be challenged as being mala fide and irrelevant
respectively.

The second approach keeps acts and ordinances on the different footing and it provides path
for questioning the satisfaction and motive of President or Governor for passing an ordinance.
The judges which follow the second approach give their decisions by using Bommai’s case.

Article 123 lays down that an ordinance is promulgated when the president is satisfied that
circumstances exists which renders it necessary for him to take immediate action. The
discretion of the President is based on the aid and advice of the Central executive.11 Whether
the circumstances existed or not has be decided by the Central executive in its subjective
satisfaction.

According to Chief Justice Ahmadi in State of AP v. McDowell & Co., “A law made by the
Parliament can be struck down by Courts on two grounds and two grounds alone (1) lack of
legislative competence and (2) violation of any of the fundamental rights … or of any other
constitutional provision.” In Dharam Dutt v Union12 of India Justice Lahoti laid down that if
legislature is competent to legislate on the subject and pass any law then the motive behind
passing that law cannot be challenged and moreover irrelevant. His judgement was based on t
what was held in K.C Gajapati Narayan Deo v State of Orissa13 that an act of parliament
cannot be challenged on the basis of motive if the legislature is competent to enact it if it is
incompetent then question of motive does not arise.

In T. Venkattah Reddy v State of Andhra Pradesh14 it was ruled by the Supreme Court that
the power to make an ordinance is legislative power and not executive power and its exercise
cannot be questioned on such grounds as improper motives, or non-application of mind. It

11
R.C Cooper v Union Of India, AIR 1970 SC 564,587
12
AIR 2004 SC 1295 [16].
13
[1954] 1 SCR 1 [9].
14
AIR 1985 SC 724
was further held that an ordinance stand on the same footing as an Act therefore an ordinance
should be provided with all the attributes of an Act of legislature. Thus, ordinance would
have all the limitations and immunities that an Act of legislature carries.

In K. Nagaraj V State of Andhra Pradesh15 the Supreme Court held that an ordinance cannot
be invalidated on the grounds of non-application of mind. The power to issue an ordinance is
the power of executive to legislate and not an executive power and it is subject to only those
limitations to which the legislative power of the state is subject. Therefore an ordinance can
be invalidated on the grounds of contravention of provisions of constitution but it cannot be
declared invalid on the grounds of non-application of mind. It was further held that the
ordinance making power cannot be questioned on the grounds of mala fide as it legislative in
nature. The Court said that even if the ordinance was passed by the executive due to ulterior
motives it cannot make passing of law mala fide.

These cases are aligned to the approach which keeps ordinances and Act of parliament on the
same footing and therefore provides ordinances immunity that an Act of legislature enjoys.
The learned scholar of Constitutional law M.P Jain has advocated the view that there is an
essential difference between an ordinance and an act of legislature and the difference lies in
that legislation through Parliament, which is an elected body, is transparent and subject to
debate and discussion , the promulgation of an ordinance is an executive decision and in
neither is transparent nor subject to any discussion in any forum. According to him it the
legislative act of executive and not the act of legislature and therefore an ordinance should be
open to challenge on the ground of mala fides so that executive cannot misuse it power.16

In Krishna Kumar v State of Bihar17 Justice Sujata Manohar invalidated the ordinances
passed by the Bihar government on the grounds that no proper reasons were averred by the
Bihar government for passing ordinances and the Governor’s satisfaction was fraudulent. In
case of B.A Hasanabha v State of Karnataka18 a single judge bench of Karnataka High
Court invalidated an ordinance promulgated by State Governor on the ground of mala fides.
He further held that if an ordinance is challenged on the grounds of mala fides, the court must
examine it more meticulously. This decision of the single judge is the classic case of second
approach but the decision of the single judge was reversed by the two judges bench of the

15
AIR 1985 SC 551, 565.
16
M.P Jain, Indian Constitutional law, 7th ed , pg.175.
17
AIR 1998 SC 2288.
18
AIR 1998 Kant 91 .
same High Court. It was held that an ordinance or a law cannot be held unconstitutional on
the ground of mala fides.19 The Court in passing its decision relied on the constitutional law
principle that legislature in passing law cannot be accused of mala fide and the Governor is
the substitute for legislature in case of passing ordinance and hence an ordinance passed by
him cannot be said to be the “colourable exercise of power”. The Court in passing its
judgement used the reasoning of the Court in Nagaraj’s case.

The learned scholar of law M.P Jain has appreciated the approach of single judge in the
Hasanabha’s case. He criticised the judgement of division bench on holding executive body
as a substitute for legislature.

The Supreme Court in the recent case of Krishna Kumar v State of Bihar20 that the
satisfaction of the President is not immune from judicial review specially after the 44th
amendment which reversed the position brought by 38th amendment which laid down that
satisfaction the President cannot be challenged. The Hon’ble Justice Chandrchud while
delivering judgement for the majority held that intent of the legislature to subject the
satisfaction of the President to the judicial review is visible from the 44th amendment. It was
held that the court in its exercise of power of judicial review would only consider that the
decision was based on some relevant material but would not inquire into the adequacy of the
material placed before the President. The court held that it could investigate that whether the
satisfaction of the President was fraud on power and to serve oblique motive.

“The satisfaction of the President under Article 123 and of the Governor under Article 213 is
not immune from judicial review particularly after the amendment brought about by the
forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles.
The test is whether the satisfaction is based on some relevant material. The court in the
exercise of its power of judicial review will not determine the sufficiency or adequacy of the
material. The court will scrutinise whether the satisfaction in a particular case constitutes a
fraud on power or was actuated by an oblique motive. Judicial review in other words would
enquire into whether there was no satisfaction at all.”

The majority’s opinion, authored by Justice D.Y. Chandrachud, on behalf of five of the
seven judges who heard this case, relied on Bommai’s21 case in which it was held that

19
State of Karnataka v B.A Hasanahba, AIR 1998 Kant 210.
20
http://judis.nic.in/supremecourt/imgs1.aspx?filename=44452.
21
Supra note,10.
proclamation under Art.356 can be challenged on the ground of mala fides, or that it is based
on wholly extraneous and irrelevant grounds.

This court overruled T. Venkata Reddy’s22 case which ruled that as act of legislatures cannot
be questioned on the grounds of improper motives and ordinances stands on the same footing
therefore, ordinances can also not be challenged on the grounds of motives.

22
(1985) 3 SCC 198.
REPROMULGATION OF ORDINANCES
Many a times the government to meet its political ends and to evade the criticism that a Bill
would face on the floor passes ordinance when the Parliament is not in session and at times
this practise take face of greater evil when the ordinances are re promulgated without placing
it before the legislature. The constitutionality of the re-promulgation of ordinances came
before the Supreme Court in the case of D.C Wadhwa v Union of India23 . In this case The
State of Bihar adopted a practice of repromulgating the ordinances on a massive scale from
time to time without their provisions being enacted into acts of the legislature. The practice
was that, after the session of the State Legislature was prorogued, the same ordinances
which had ceased to operate were repromulgated containing substantially the same
provisions almost in a routine manner. The petitioners challenged the validity of this
practice and in particular they challenged the constitutional validity of three different
ordinances issued by the Governor of Bihar, namely,(1) Bihar Forest Produce (Regulation of
Trade) Third Ordinance 1983; (ii) The Bihar Intermediate Education Council Third
Ordinance 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance 1983, since
these Ordinances also suffered the same process of re promulgation from time to time. The
Court held that the Governor should exercise his ordinance making power within limits
otherwise it would lead to usurping of power of legislature. It was held that if the
Government feels that provisions of the ordinance should be continued then it should place
the ordinance in front of the legislature for it to be replaced by an Act. The Court denounced
the Ordianance Raj. The court further said that the ordinance making power is the
extraordinary power given to executive to meet emergent situations and if this power is
misused by continuously re promulgating the ordinances without placing them before
legislature then it would be certainly the “colourable exercise” of “power by the
government”. This practise would undermine the constitutional scheme as executive would
take the role of legislature.

“The Governor cannot assume legislative function in excess of the strictly defined limits set
out in the Constitution because otherwise he would be usurping a function which does not
belong to him…. It is hoped and trusted that such practice shall not be continued in the
future and that whenever an Ordinance is made and the Government wishes to continue the
provisions of the Ordinance in force after the assembling of the Legislature, a Bill will be
brought before the Legislature for enacting those provisions into an Act. There must not

23
(1987) 1 SCC 378.
be Ordinance Raj in the country…..When the constitutional provision stipulates that an
Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in
operation at the expiration of six weeks from the reassembly of the Legislature and the
Government if it wishes the provisions of the Ordinance to be continued in force beyond the
period of six weeks has to go before the Legislature which is the constitutional authority
entrusted with the law making function, it would most certainly be a colourable exercise of
power for the Government to ignore the Legislature and to repromulgate the Ordinance and
thus to continue to regulate the life and liberty of the citizens through Ordinance made by
the Executive. Such a stratagem would be repugnant to the constitutional scheme, as it
would enable the Executive to transgress its constitutional limitation in the matter of
law making in an emergent situation and to covertly and indirectly arrogate to itself the law
making function of the Legislation.”

But in this case Supreme Court carved out two exceptions when the repromulgation of
ordinances can be valid and not susceptible to attack: 1) when the legislature is loaded wiith
the legislative business in a particular session 2). The particular session of the Legislature is
short.

“Of course, there may be a situation where it may not be possible for the Government to
introduce and push through in the Legislature a Bill containing the same provisions as in the
Ordinance, because the Legislature may have too much legislative business in a particular
Session or the time at the disposal of the Legislature in a particular Session may be short,
and in that event, the Governor may legitimately find that it is necessary to repromulgate
the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to
attack. But otherwise, it would be a colourable exercise of power on the part of the Executive
to continue an Ordinance with substantially the same provisions beyond the period limited by
the Constitution, by adopting the methodology of repromulgation.”

In Krishna Kumar v State of Bihar24r the author of majority judgement Justice Chandrachud
has admitted that this exception carved out in Wadhwas’s case has been criticised on the
ground that even if the legislature is loaded with legislative business the session can be
extended on the discretion of the government for converting an ordinance into an enactment
of the legislature.

24
Supra note,20.
“This exception has been criticized on the ground that however pressing is the existing
legislative business, it lies in the discretion of the government to seek an extension of the
legislative session for converting an ordinance into an enactment of the legislature.
Moreover, it has been questioned as to whether a repromulgated ordinance would meet the
basic constitutional requirement of the existence of circumstances bearing upon the
satisfaction of the Governor on the need to take immediate action.”

In this case it was held by majority that if a series of ordinances is passed then the entire
series would be considered as unconstitutional. The first ordinance would not be segregated
from the entire chain as it would be the integral part of the chain to constitute a fraud on
constitution.25

“All the ordinances formed a part of one composite scheme by which the Governor of Bihar
promulgated and re-promulgated ordinances. That chain or link commenced from the
promulgation of the first ordinance. Hence, in the very nature of things it would not be
possible to segregate the first ordinance since it forms an intrinsic part of a chain or link of
ordinances each of which and which together constitute a fraud on constitutional power.”

25
Krishna Kumar v State of Bihar,
http://judis.nic.in/supremecourt/imgs1.aspx?filename=44452.
IS IT MANDATORY TO PLACE ORDINANCE BEFORE
LEGISLATURE?

In S.P. Gupta & Ors. v. Union of India & Ors.26 it was held that an ordinance must be placed
before the Legislature.

“Every ordinance promulgated by the Governor must be placed before the Legislature and
it would cease to operate at the expiration of six weeks from the reassembly of the
Legislature or if before the expiration of that period a resolution disapproving it is
passed by the Legislative Assembly and agreed to by the legislative Council,.”

The majority in the Krishna Kumar v State of Bihar27 held that the tabling of offence helps
the legislature to exercise of power of supervision and control given by the constitution. It
would give legislature a chance to debate and discussion for the need and expediency of
passing ordinance. Holding that the ordinance making power is not parallel to legislature it
emphasized that ordinance is promulgated when the legislature is not in session and if the
legislature fails to place the ordinance before the legislature it commits serious violations of
constitutional obligations. It held that the placing of ordinance before the legislature is
mandatory and if the executive fails to comply with this “unconditional obligation” of placing
the ordinance before the legislature the ordinance would not have the same force and effect as
a law enacted by the Parliament. It held that the once the ordinance is placed before the
legislature then only the constitutional fiction that an ordinance have same force and effect as
that of law passed by legislature. It further held that an ordinance which has not been placed
before the legislature at all cannot remain valid till it ceases to operate ie. Six weeks after
reassembling of the legislature.

The ordinance making power is not a parallel source of legislation. An ordinance is

promulgated at a time when the legislature is not in session. The failure to place an
ordinance before the legislature constitutes a serious infraction of a constitutional obligation
which the executive has to discharge by placing the ordinance before the legislature. The
laying of an ordinance facilitates the constitutional process by which the legislature is
enabled to exercise its control. Failure to lay an ordinance before the legislature amounts to
an abuse of the constitutional process and is a serious dereliction of the constitutional

26
[1982] 2 SCR365.
27
Supra note, 20.
obligation….If the executive has failed to comply with its unconditional obligation to place
the ordinance before the legislature, the deeming fiction attributing to the ordinance the same
force and effect as a law enacted by the legislature would not come into existence. An
ordinance which has not been placed before the legislature at all cannot have the same force
and effect as a law enacted and would be of no consequence whatsoever. The Constitution
has not made a specific provision with regard to a situation where an ordinance is not placed
before a legislature at all. Such an eventuality cannot be equated to a situation where an
ordinance lapses after the prescribed period or is disapproved. The mandate that the
ordinance will cease to operate applies to those two situations. Not placing an ordinance at
all before the legislature is an abuse of constitutional process, a failure to comply with a
constitutional obligation. A government which has failed to comply with its constitutional
duty and overreached the legislature cannot legitimately assert that the ordinance which it
has failed to place at all is valid till it ceases to operate. An edifice of rights and obligations
cannot be built in a constitutional order on acts which amount to a fraud on power. This will
be destructive of the rule of law. Once an ordinance has been placed before the legislature,
the constitutional fiction by which it has the same force and effect as a law enacted would
come into being and relate back to the promulgation of the ordinance. In the absence of
compliance with the mandatory constitutional requirement of lying before the legislature, the
constitutional fiction would not come into existence.
EFFECTS OF ORDINANCES
The expression “cease to operate” in Article 213 or 123 is attracted in two situations. The
first is where a period of six weeks has expired since the reassembling of the legislature. The
second situation is where a resolution has been passed by the legislature disapproving of an
ordinance. Apart from these two situations that are contemplated by sub-clause (a), sub-
clause (b) contemplates that an ordinance may be withdrawn at any time by the Governor or
President as the case may be. Upon its withdrawal the ordinance would cease to operate as
well.

In State of Orissa v. Bhupendra Kumar Bose28 , elections to a municipality were set aside by
the High Court on a defect in the publication of the electoral roll. The Governor of Orissa
promulgated an ordinance by which the elections were validated together with the electoral
rolls. A Bill was moved in the state legislature for enacting a law in terms of the provisions of
the ordinance but was defeated by a majority of votes. The State of Orissa filed an appeal
before Supreme Court against the decision of the High Court striking down material
provisions of the ordinance. , it was contended by the respondent that the ordinance was in
the nature of a temporary statute which was bound to lapse after the expiration of the
prescribed period and as the ordinance had lapsed, the invalidity of the elections which it had
cured stood revived. Justice Gajendragadkar, writing the opinion of a Constitution Bench
held that the general rule in regard to a temporary statute is that in the absence of a special
provision to the contrary, proceedings taken against a person under it will terminate when the
statute expires. That is why the legislature adopts a savings provision similar to Section 6 of
the General Clauses Act. But in the view of the court, it would not to be open to the
ordinance making authority to adopt such a course because of the limitation imposed by
Article 213(2)(a). The court adopted the ‘enduring rights’ theory which had been applied in
English decisions to temporary statutes - was thus brought in while construing the effect of an
ordinance which has ceased to operate.

28
AIR 1962 SC 945.
In T. Venkata Reddy v State of Andhra Pradesh29 in 1984, the State Government promulgated
an ordinance abolishing posts of part time village officers in the State. The ordinance was not
replaced was not replaced by an Act of the Legislature though it was succeeded by four
ordinances. It was argued that the ordinance having lapsed as the Legislature did not pass not
an Act in its place, the posts which had been abolished should be deemed to have been
revived and the issue of successive ordinances, the subsequent one replacing the earlier one
did not serve any purpose. The Supreme Court rejected the argument. The Court argued that
an ordinance comes into effect as soon as it is promulgated. If later the ordinance comes into
an end, the ordinance does not become void ab initio. It is valid when promulgated and
whatever transaction has been completed cannot be reopened when the ordinance comes to an
end. Article 123 or 213 does not say that the ordinance shall be void from the commencement
on the Parliament/State Legislature disapproving it. It says that it shall cease to operate. It
only means that the ordinance should be treated as being effective till it ceases to operate.

.It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void
from the commencement on the State Legislature disapproving it. It says that it shall cease to
operate. It only means that it should be treated as being effective till it ceases to operate on
the happening of the events mentioned in clause (2) of Article 213.

The ordinance in questions in question in the instant case abolished the posts of part-time
village officers. Therefore, because of the ordinance, all posts of part-time village officers
stood abolished and these officers ceased to be employees of the State Government. This was
an accomplished matter. Therefore, even if the ordinance ceased to operate later, what had
been accomplished became irreversible. The abolition of the posts having become completed
events, “these is no question of their revival”. The abolition of the posts of part-time village
officer was held to be an established fact. If the legislature intended to bring back the post as
it existed before the promulgation of the ordinance, the court held that a law would have to be
enacted by the state legislature,

We do not, however, mean to say here that Parliament or the State Legislature is powerless
to bring into existence the same state of affairs as they existed before an Ordinance was
passed even though they may be completed and closed matters under the Ordinance. That
can be achieved by passing an express law operating retrospectively to the said effect, of
course, subject to the other constitutional limitations. A mere disapproval by Parliament or

29
Supra note, 14.
the State Legislature of an Ordinance cannot, however, revive closed or completed
transactions.”

In Krishna Kumar Singh v State of Bihar30 the basic premise of decision of Bhupendra
Kumar Bose that principle that applies to determine the effects of temporary enactment would
also apply to determine the effects of ordinances was held to be flawed. It was held that
legislature has power to determine the life of an enactment and whether the effects of those
enactments can be continued or not. The legislature which is competent to enact statutes with
unlimited life is equally competent to enact temporary legislation which can convey the intent
of the legislature to continue the rights and obligations which arose during the life of the law
even after its expiry. It was held that the basic foundation of the decision of the Court in the
cases of Bhupendra Kumar Bose and T.Venkatah Reddy cannot be held to reflect the true
position of law. It was held that there is critical difference between an enactment by the
competent legislature and an ordinance. The power under 123 and 213 is limited and
conditional. It was held that “enduring rights” theory which has been applied to the
temporary enactments of legislature cannot be applied the ordinances. The application of the
doctrine of enduring rights to ordinances would make the exercise of power by the executive
survive in terms of the rights, liabilities, privileges and obligations. The enduring rights
theory, the court said; give permanence to ordinances in derogation of parliamentary
supremacy. It was held that the proposition laid down in Venkatah Reddy’s case that if the
parliament wants to reverse the effects of ordinances the legislature should pass a specific
legislation regarding it is against the order of legislative power.

Justice Chandrachud in his judgment of behalf of five judges out of seven opined :

“The basic premise of the decision in Bhupendra Kumar Bose is that the effects of an
ordinance can be assessed on the basis of the same yardstick that applies to a temporary
enactment. There is a fundamental fallacy in equating an ordinance with a temporary
enactment....it lies perfectly within the realm and competence of the legislature which enacts
a temporary law to provide that the rights or the liabilities which are created during the
tenure of the law will subsist beyond the expiry of its term. The legislature which has the
competence to enact a law unrestricted by tenure is equally competent to enact a temporary
legislation in which it can convey a legislative intent that the rights or obligations which will
be created will continue to subsist even upon its expiry. An ordinance is not in the nature of a

30
Supra note,20.
temporary enactment. An ordinance is conditioned by specific requirements….The basis and
foundation of the two Constitution Bench decisions cannot be accepted as reflecting the true
constitutional position

The Constitution Bench equated an ordinance with a temporary act enacted by the competent
legislature. This approach, with respect, fails to notice the critical distinction between an
enactment of a competent legislature and an ordinance. …..The enduring rights theory which
was accepted in the judgment in Bhupendra Kumar Bose was extrapolated from the
consequences emanating from the expiry of a temporary act. That theory cannot be applied to
the power to frame ordinances. Acceptance of the doctrine of enduring rights in the context of
an ordinance would lead to a situation where the exercise of power by the Governor would
survive in terms of the creation of rights and privileges, obligations and liabilities on the
hypothesis that these are of an enduring character. The legislature may not have had an
opportunity to even discuss or debate the ordinance (where, as in the present case, none of
the ordinances was laid before the legislature);... The judgment in T Venkata Reddy
essentially follows the same logic but goes on to hold that if Parliament intends to reverse
matters which have been completed under an ordinance, it would have to enact a specific law
with retrospective effect. This, in our view, reverses the constitutional ordering in the regard
to the exercise of legislative power.”

The Court held that the question as to whether rights, privileges, obligations and liabilities
would survive an Ordinance which has ceased to operate must be determined as a matter of
construction. The appropriate test to be applied is the test of public interest and constitutional
necessity which would include the issue as to whether the consequences which have taken
place under the Ordinance have assumed an irreversible character. In a suitable case, it would
be open to the court to mould the relief.
CONCLUSION
The ordinance making power of the executive is extraordinary in nature which can be
exercised when the legislature is not in session. The ordinance making power is the
legislative power of the executive but is different from an act of legislature. It is mandatory to
place an ordinance before the legislature on its reassembly then only it would have the same
effect as that of the legislature. This is to ensure the supremacy of the legislature in making
laws and to preclude the government to misuse the ordinance making power to achieve its
own political ends. The re-promulgation of ordinances is fraud on the constitution. Earlier it
was the position that the satisfaction and motive of the President or Governor, as the case
may be, cannot be challenged as ordinance lies on the same footing as that the act of
legislature and therefore enjoys same immunities as that enjoyed by the enactment of
legislature. The majority judges in the case of Krishna Kumar Singh v State of Bihar31 refuted
this and held that ordinance is different from the act of legislature and the satisfaction of the
President or Governor is not immune from the judicial review and an ordinance can be
challenged on the ground of “oblique motive” and malafides.

The “enduring rights doctrine” which was brought into the context of ordinance by the
Bhupedra Bose case can no more be applied to ordinances after Singh’s case. The rights ,
privileges, liabilities and obligations created by the ordinances would survive after the
ordinance ceases is matter of construction. The appropriate test to be applied is the test of
public interest and constitutional necessity which would include the issue as to whether the
consequences which have taken place under the Ordinance have assumed an irreversible
character.

By all these the unbridled power of executive to promulgate ordinance can be tamed and
supremacy of Parliament in framing laws can be maintained. The public interest test for the
survival of effects of ordinance would still be problematic. By making the laying of
ordinance mandatory in front of legislature would be very useful to quash the ill motives of
the government and would be in the lines of rule of law.

31
Supra note, 20.
REFERENCES

BOOKS

 The Constitution of India by M.P Jain.

 The Constitution of India by M.P Singh.

ONLINE SOURCES

 SCC Online
 http://judis.nic.in/supremecourt/imgs1.aspx?filename=44452