Krishna Kumar Singh vs State of Bihar - Supreme Court Important Judgment

 Krishna Kumar Singh vs State of Bihar - Supreme Court Important Judgment 2017 - 

 

On 2nd January, 2017, in the case of Krishna Kumar Singh & Anr. vs State of Bihar & Ors. [Civil Appeal No.5875 of 1994], a seven-judge Bench examined the power of the Executive to make law through ordinance, and inter alia held per majority, that the power conferred upon the President under Article 123 of the Constitution and the Governor under Article 213 is legislative in character and “is conditional in nature” as “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.”

It was held that “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 (i) be laid before the legislature; and (ii) 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 Moreover, an Ordinance may also be withdrawn”. It was clarified that “the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority” and that “consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control.” 

The Bench held that “the requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. Laying of the ordinance before the legislature is mandatory because the legislature has to determine: (a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments)”. “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”. It was held that “repromulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes”.

It was further held that “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.”