3-Jan-2017: SC widens the scope of judicial review 

In the case of, Krishna Kumar Singh v State of Bihar, Supreme Court held that re-promulgation of an ordinance was a fraud on the Constitution and that the ordinances passed by the President and the State Governors by bypassing the legislature are not immune from judicial review. The bench stated that since an ordinance has the same force as a law passed by the legislature, it will now be mandatory to place it before the Parliament or the State legislature.

Article 123 of the Constitution of India gives the power and authority to the President of India to issue an ordinance only when both the Houses of Parliament are not in session. In addition, it states that any ordinance can have the same force and effect as a statute of Parliament only if it is laid before both the houses of the Parliament. Further, Ordinance so made will hold good only for a duration of six weeks from the reassembly of Parliament. Article 213 mandates near identical terms with respect to the ordinances on subject of State authority. It is understood that the authority to issue ordinances shall be used only to meet the emergent demands arising out of extraordinary situations.

Observations made by the court:

1. The power which has been conferred is conditional to Article 133 of the Constitution. The power can only be exercised when the legislation is not in session and is subject to the satisfaction of the President.
2. 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 (ii) it will cease to operate six weeks after the legislature has resembled or, even earlier if a resolution disapproving it is passed. Moreover, an ordinance may also be withdrawn.
3. The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213.
4. The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.
5. Consistent with the principle of legislative supremacy, the power to promulgate ordinances is subject to legislative control. The President or, as the case may be, the Governor acts on the aid and advice of the Council of Ministers which owes collective responsibility to the legislature.
6. 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.
7. Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes.
8. 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 scrutinize 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.

Earlier in Dr. D.C. Wadhwa versus State of Bihar case, the Constitution Bench of the Supreme Court held that Executive has no arbitrary right to promulgate ordinances. It also ruled that the right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not law made by the Executive in violation of the constitutional provisions.

This judgment widens the scope of judicial review of Ordinances. It basically promotes more transparency in the functioning of the same and the Court can exercise the powers of judicial review and verify the actions undertaken by both President and the Governor so as to arrive at the satisfaction that an Ordinance was necessary or not. It can also be observed that re-promulgation is fundamentally at odds with the principal of parliamentary supremacy. Article 123 of the Constitution spells out requirements before resorting to the extraordinary measure of promulgating an ordinance. It quite convincingly appears that the government has converted the emergent power under Article 123 into a source of parallel law-making that is unethical to the scheme of the Constitution. Ordinances are seldom brought before the legislature but are reissued again and again, violating the spirit of the Constitution. The court's verdict has to be seen as placing a vital check on what has until now been a power rampantly abused by the executive. Therefore, in short, negligence/failure of governments, at the Centre as well as states, to place ordinances before Parliament and State legislatures would in itself be constituted as a fraud on the Constitution and the same cannot be allowed in the good spirit of law and order.

Glossary:

Judicial Review: Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.