Krishna Kumar Singh & Anr. v. State of Bihar & Ors.
Background
Beginning in 1989, the Governor of Bihar repeatedly promulgated and re-promulgated a series of Ordinances taking over 429 non-government Sanskrit schools in the state and transferring their teachers and staff to the state government, but none of these Ordinances were ever placed before the state legislature as the Constitution requires, and the legislature never enacted a corresponding law. After the last Ordinance lapsed, the school staff went to court seeking unpaid salaries, and conflicting rulings by different benches of the Supreme Court over the years on whether such lapsed Ordinances could still create enforceable rights eventually led to this dispute being referred to a seven-judge Constitution Bench.
Decision Breakdown
The Constitution Bench (by majority, through Chandrachud, J.) held that laying an Ordinance before the legislature under Article 213(2) (and the parallel Article 123(2) for Presidential Ordinances) is a mandatory constitutional obligation, and that an Ordinance does not automatically create permanent or irreversible rights merely because it was in force for a period, whether rights or liabilities survive after an Ordinance lapses must be decided case-by-case using a test of "public interest and constitutional necessity," with courts empowered to mould relief. Applying this, the Court declared that the Ordinances from the fourth one onward amounted to a "fraud on constitutional power" since they were repeatedly re-promulgated without ever being placed before the legislature, but it moulded the relief so that no recoveries would be made from the employees for salaries already paid to them during the Ordinances' operation. Lokur, J. disagreed in part, taking the view that laying an Ordinance before the legislature is not strictly mandatory and that only the fourth and later Ordinances (not the first three) should be struck down, while CJI Thakur wrote separately to leave the Article 123(2)/213(2) mandatory-laying question open on the facts of this case while otherwise agreeing with Chandrachud, J.'s disposal.
Lesson Learnt
A government cannot indefinitely rule by repeatedly re-issuing Ordinances instead of passing laws through the legislature, doing so can be struck down as a fraud on the Constitution, and an Ordinance, even while it lasts, generally does not create permanent rights for those affected by it once it lapses, though courts can still protect people (such as employees who were already paid) from unfair reversal of benefits they already received in good faith.