Constitution of India: Art.213 - Promulgation of Ordinances one after another in succession but none of them laid before the legislature - In the instant case, Governor of Bihar promulgated an Ordinance providing for taking over of 429 Sanskrit schools in the State - The services of teachers and other employees of the school were to stand transferred to the state government subject to certain conditions - The first Ordinance was followed by a succession of Ordinances - None of the Ordinances, which were issued in exercise of the power of the Governor under Art.213 were placed before the state legislature as mandated - Validity of the Ordinances -

Held: Every ordinance at issue constituted a fraud on constitutional power - These ordinances which were never placed before the state legislature and were re-promulgated in violation of the binding judgment of Supreme Court in D C Wadhwa were bereft of any legal effect and consequences - The ordinances did not create any rights or confer the status of government employees on the teachers and other employees of the schools - However, as regard the salaries paid during the tenure of the ordinances pursuant to the directions made in the judgment of the High Court, no recoveries to be made from any of the employees - Ordinance Raj-Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance, 1989 - Service law. (Per majority) Art.213 - Promulgation of Ordinances during recess of legislature - Requirement under - Held: The authority which is conferred upon the Governor to promulgate Ordinances is conditioned by two requirements - The first is that an Ordinance  can be promulgated only when the state legislature is not in session - The second requirement is that the Governor before issuing an Ordinance has to be satisfied of the existence of circumstances rendering it necessary to take immediate action - The Governor is required to form a satisfaction of the existence of circumstances  which makes it necessary to take immediate action - Necessity is distinguished from a mere desirability - The expression "necessity,. coupled with "immediate action" conveys the sense that it is imperative due to an emergent situation to promulgate an Ordinance during the period when the legislature is not in session - Both these requirements indicate a constitutional intent to confine the power  of the Governor to frame Ordinances within clearly mandated limits. (Per majority) Art.213(1) - Circumstances in which the Governor cannot promulgate an Ordinance without the instructions of the President - The three situations where the instructions of the President are D required are: Where a Bill containing the same provisions requires the previous sanction of the President, for its introduction into the legislature; where a Bill containing the same provisions would be deemed necessary by the Governor for being reserved for consideration of the President; and where a law enacted by the state legislature containing the same provisions would require the E assent of the President, failing which it would be invalid. (Per majority) Art.213 - Requirement of laying an Ordinance before the state legislature is mandatory- The expression "shall be laid" is a positive mandate which brooks no exceptions - That the word 'shall' in sub-clause (a) of clause 2 of Art. 213 is mandatory, emerges from reading the provision in its entirety. (Per majority)  Art.213 - Tenure of an Ordinance - Though the Constitution contemplates that an Ordinance shall have the same force and effect qs a law enacted by the state legislature, this is subject to the  Ordinance being laid before the state legislature and coming to an end in the manner stipulated in sub-clauses (a) and (b) - It is brought to an end : By the Ordinance ceasing to operate upon the expiry of a period of six weeks of the reassembly of the legislature; or if the Ordinance is disapproved by a resolution of the state legislature in which event it ceases to operate on the resolution disapproving it being passed; or in the event of the Ordinance being withdrawn by the Governor. (Per majority) Art.163 - Governor acts on aid and advice of Council of Ministers - Governor while promulgating an Ordinance does not constitute an independent legislature, but acts on the aid and advice of the Council of Ministers under Art.163- The Council of Ministers is collectively responsible to the elected legislative body to whom the government is accountable. (Per majority) Arts.123, 213 - Ordinance making power - Constitutional c control of Parliament and the state legislatures over the Ordinance making power of the President (under Art.123) and the Governors (under Art.213) is a necessary concomitant to the supremacy of a democratically elected legislature - The reassembling of the legislature defines the outer limit for the validity of the Ordinance promulgated during its absence in session - Within that period, a  legislature has authority to disapprove the Ordinance - The requirement of laying an Ordinance before the legislative body subserves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature - The legislature has before it a full panoply of legislative powers  and as an incident of those powers, the express constitutional authority to disapprove an Ordinance - If an Ordinance has to continue beyond the tenure which is prescribed by Art.213(2)(a), a law has to be enacted by the legislature incorporating its provisions - Our Constitution does not provide that an Ordinance shall assume the character of a law enacted by the state legislature merely upon  the passing of a resolution approving it. (Per majority) Arts.123, 213 - Significance of placing tabling the Ordinance - Held: The placement of an Ordinance before the legislature is a constitutional necessity; the underlying object and rationale being to enable the legislature to determine (i) the need for and expediency  of an ordinance; (ii) whether a law should be enacted: or (iii) whether the Ordinance should be disapproved. (Per majority) Art.213 - Failure to lay an Ordinance before the legislature - Impact of - Held: The failure to lay an Ordinance before the state legislature constitutes a serious infraction of the constitutional obligation imposed by Art.213(2) - Requirement of laying an Ordinance before the state legislature is a mandatory obligation . and is not merely of a directory nature. (Per majority) Art.213 - Failure to lay an ordinance before the legislature amounts to an abuse of the constitutional process and is a serious dereliction of the constitutional obligation - In the case of delegated legislation, Parliamentary or state enactments may provide a requirement of laying subordinate legislation before the legislature - It is well-settled that a requirement of merely laying subordinate legislation before the House of the legislature is directory : But where a disapproval of subordinate legislation is contemplated, such a requirement is mandatory. (Per majority) Arts.123, 213 - Presidential/Governor satisfaction - Scope of - Held: The constitutional power which has been conferred upon the President under Art. 123 and upon the Governors under Art. 213 to promulgate ordinances is conditional - Apart from the condition that the power can be exercised only when the legislature is not in D session, the power is subject to the satisfaction of the President (under Art.123) or the Governor (under Art.213) "'that circumstances exist which render it necessary for him to take immediate action. " (Per majority) Arts.123, 213 - Presidential/Governor satisfaction - Judicial E review, scope - The satisfaction of the President under Art.123(1) or of the Governor under Art.213(1) is not immune from judicial review - The power of promulgating ordinances is not an absolute entrustment but conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action - Since the  duty to arrive at the satisfaction rests in the President and the Governors (though it is exercisable on the aid and advice of the Council of Ministers), the Court must act with circumspection when the satisfaction under Art.123 or Art.213 is challenged - The court will not enquire into the adequacy, or sufficiency of the material before the President or the Governor - The court will not interfere  if there is some material which is relevant to his satisfaction - The interference of the court can arise in a case involving a fraud on power or an abuse of power - This essentially involves a situation where the power has been exercised to secure an oblique purpose - In exercising the power of judicial review, the court must be mindful of its inherent limitations as well as of the entrustment of the power to the head of the executive who acts on the aid and advice of the Council of Ministers owing collective responsibility to the elected legislature - In other words, it is on(v where the court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court B may be warranted in a rare case - However, absolute immunity from judicial review cannot be supported as a matter of first principle (Per majority) or on the basis of constitutional history.  Arts.123, 213 - Re-promulgation of an Ordinance - Constitutionality of - Held: Re-promulgation of ordinances is c constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law making authority in a parliamentary democracy - Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the  Governors - The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law givers under the Constitution - Open legislative debate and discussion provides sunshine which separates secrecy of ordinance making from transparent and accountable governance through law making. Art.213(2)(a) and (b) - Expression "cease to operate" in Art.213(2)(a) - When attracted - Held: 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 - Upon its withdrawal the ordinance would cease to operate as well. (Per majority) Art. 213 - Consequence of an ordinance terminating on the expiry of a period of six weeks or, within that period, on a disapproval by the legislature - Held: The constitutional provision states that,.in both situations the ordinance ceases to operate - Where an ordinance has ceased to operate, would it result ipso Jure in a revival of the state of affairs which existed before the ordinance was promulgated - There are two constructions which need to be analysed - At one end of the spectrum is the view that once the legislature has expressed its disapproval by a resolution, the state of affairs which the ordinance brought about stands dissolved and that which existed on the eve of the ordinance stands revived - In this view, disapproval amounts to an obliteration of the effect of all that had transpired in the meantime -At the other end of the spectrum is the view that an ordinance upon being promulgated has the force and effect of a law enacted by the legislature - Hence, the lapsing of its term (on the expiry of six weeks or the passing of a resolution of disapproval)means that the ordinance ceases to operate from that date - Until the ordinance ceases to operate, it continues to have the force of law with the result that the enduring effects of an ordinance or consequences which have a permanent character may subsist beyond the life of 'the' ordinance - Alternatively, where a situation has been altered irreversibly in pursuance of the legal authority created by the ordinance, the clock cannot be set back to revive the state of affairs as it existed prior to the promulgation of the ordinance. (Per majority)  Ordinance and temporary enactment - Distinction between - ls Ordinance a temporary enactment - Held: A temporary Act is a law which is enacted by the legislature, Parliament or the state legislature in exercise of its plenary powers - While enacting a law. the· legislature is entitled to define the period during which the law is intended to operate - The legislature decides whether the law will be for a limited duration or is to be permanent - An ordinance is not in the nature of a temporary enactment - An ordinance is conditioned by specific requirements - The authority to promulgate F an ordinance arises only when the legislature is not in session and when circumstances requiring emergent action exist - The Constitution prescribes. that an ordinance shall remain valid for a period of not more than six weeks after the legislature reassembles and even within that period, it will cease to operate if it is disapproved - Hence, the considerations which govern law making by a  competent legislature which has plenary powers to enact a law cannot be equated with a temporary enactment. (Per majority) . Art.213 - Cease to operate - Connotation of in the context of Art. 213 - Held: The Constitution has in its provisions used different phrases including "repeal", "void", ··cease to have effect" and "cease to operate" - These phrases have different connotations: each cannot be equated with the other - Consequently, the court should be careful to not attribute to the expression "cease to operate" the same meaning as the expression "void" - This is of  particular significance because clause 3 of Art. 213 uses the expression "void" in relation to an ordinance which makes a provision which would not be valid if enacted in an act of the legislature of the state assented to by the Governor - Such a provision contained in an ordinance is declared to be void by clause 3 of Art. 213 - Evidently, when the framers wished to indicate that a  provision of an ordinance would be void in a certain eventuality, the Constitution has expressly used that phrase - This would militate against equating the expression "cease to operate" with the expression "void" - Both have distinct connotations - Particularly, where the same constitutional article has used both phrases - 'cease to operate' (in clause 2) and 'void' in (clause 3) one cannot be read  to have the same meaning as the other. (Per majority) Art.213 - Expression "cease to operate"- Connotation of - Held: The expression "cease to operate" in Art.213(2)(a) applies both to an ordinance whose tenure expires after the prescribed period as well as in relation to an ordinance which is disapproved  by the legislature - The content of the expression cannot hence mean two separate things in relation to the two situations. (Per majority) Power to frame ordinances - Enduring rights theory - Applicability of - Held: The theory which was accepted in the judgment in Bhupendra Kumar Bose 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 enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy - Doctrines/Principles. (Per majority) Law making power - Ordinance and subordinate legislation H - Requirement of an ordinance being laid before the legislature cannot be equated with the laying of subordinate legislation - Held: A An ordinance is made in the exercise of the legislative power of the Governor which is subordinate to and not a stream which runs parallel to the power of law making which vests in the state legislatures and Parliament - Any breach of the constitutional requirement of laying an ordinance before the legislature has to be  looked upon with grave constitutional disfavour - The Constitution uses the express "cease to operate" in the context of a culmination of a duration of six weeks of the reassembling of the legislature or as a result of a resolution of disapproval - The framers introduced a mandatory requirement of an ordinance being laid before the legislature upon which it would have the same force and effect as a law enacted by the legislature, subject the condition that it would cease to operate upon the expiry of a period of six weeks of the reassembling of the legislature or earlier, if a resolution of disapproval were to be passed. (Per majority) Rights, privileges, obligations and liabilities arisen under an  ordinance - Effect on, when ordinance ceased to operate - Held: In determining the issue, the overarching consideration must be the element of public interest or constitutional necessity - In deciding to mould the relief the effort of the court would be to determine whether undoing what has been done under the ordinance would manifestly be contrary to public interest - Impracticality and irreversibility in that sense are aspects which are subsumed in the considerations which weigh in the balance while deciding where public interest lies - The appropriate test to be applied is the test of public interest and constitutional necessi(v - This 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 (Per majority) Scope of the Ordinance making power - Historical evolution - England, British India and Constituent Assembly - Discussed. (Per majority) Art.213(2) - It is not mandatory under Art.213(2) to lay an Ordinance before the Legislative Assembly of the State Legislature, nor would the failure to do so result in the Ordinance not having the force and effect as an enacted law or being of no consequence whatsoever - When an Ordinance is promulgated it is printed in the Official Gazette and therefore every legislator is aware of its promulgation - Consequently, even if the Executive does not lay the Ordinance before the State Legislature or if tile Secretary of the Legislative Assembly does not supply a printed copy of the Ordinance, a Member of the Legislative Assembly is not helpless - His right to move a Resolution for disapproving the Ordinance cannot be taken away by this subterfuge - This right of a Member of the Legislative Assembly cannot be made dependent on the Executive laying the Ordinance before the State Legislature, nor can this right be taken away by the Executive by simply not laying  the Ordinance before the Legislative Assembly - Therefore, even without making the laying of an Ordinance before the State Legislature mandatory, the Constitution does provide adequate checks and balances against a possible misuse of power by the Executive. (Dissenting view) (Per Madan B.Lokur, J.) Art.213 - Re-promulgation of an Ordinance by the Governor. of a State is not per se a fraud on the Constitution - There could be exigencies requiring the re-promulgation of an Ordinance - However, re-promulgation of an Ordinance ought not to be a mechanical exercise and a responsibility rests on the Governor to be satisfied that "circumstances exist which render it necessary for him to take immediate action" for promulgating or re-promulgating an Ordinance. (Dissenting view) (Per Madan B.Lokur, J.) Art.213 - In the absence of any challenge by the employees to the first three Ordinances promulgated by the Governor of the State of Bihar, their validity must be assumed - Consequently, even  though first three Ordinances may have been repealed, the employees would be entitled to the benefits under them till they ceased to operate and the benefits obtained by the employees under these three Ordinances are justified - However, first three Ordinances do not confer any enduring or irreversible right or benefits on the employees - The promulgation of the fourth and subsequent Ordinances were not adequately justified by the State of Bihar in spite of a specific challenge by the employees and therefore they were rightly stuck down by the High Court. (Dissenting view) (Per Madan B.Lokur, J.)