Krishna Kumar Singh v. State of Bihar is a landmark 7-Judge Bench judgment of the Supreme Court on the ordinance-making power of the executive.
The case dealt with the repeated re-promulgation of ordinances in Bihar and clarified the constitutional limits on ordinance-making under Article 123 and Article 213.
The Court held that ordinances are temporary emergency laws, not a parallel method of law-making. Re-promulgation of ordinances without placing them before the legislature is unconstitutional.
Background of the Case
The case arose from Bihar, where the government had issued ordinances relating to the takeover of certain Sanskrit schools.
Instead of getting the ordinances passed as regular laws by the State Legislature, the government repeatedly re-promulgated them.
This raised a constitutional question: can the executive keep re-issuing ordinances and allow them to operate like permanent laws without legislative approval?
The case followed the earlier principle laid down in D.C. Wadhwa v. State of Bihar, where repeated re-promulgation was described as a fraud on the Constitution.
Main Issues
The Supreme Court considered important questions on the nature and limits of ordinance power.
The main issues were:
- whether repeated re-promulgation of ordinances is constitutionally valid
- whether an ordinance must be placed before the legislature
- whether the satisfaction of the President or Governor can be judicially reviewed
- what happens to rights and actions created under an ordinance after it lapses
The case was important because it examined ordinance power not as an isolated executive act, but as part of India’s constitutional scheme of separation of powers.
Supreme Court’s Judgment
The Supreme Court held that re-promulgation of ordinances is unconstitutional unless there are extraordinary circumstances.
The Court said that the executive cannot bypass the legislature by repeatedly issuing ordinances. Ordinance-making is allowed only when the legislature is not in session and immediate action is required.
The Court laid down that:
- an ordinance is temporary in nature
- it must be laid before the legislature
- repeated re-promulgation violates constitutional principles
- failure to place an ordinance before the legislature is a serious constitutional violation
- the satisfaction of the President or Governor is not completely beyond judicial review
- ordinance-making cannot be used to create an enduring law without legislative approval
The Court held that laying an ordinance before the legislature is not a mere formality. It is a constitutional requirement that enables legislative scrutiny.
Doctrine of Enduring Rights
One important part of the judgment dealt with what happens after an ordinance lapses.
Earlier, there was uncertainty about whether rights, liabilities or actions created under an ordinance survive after the ordinance ceases to operate.
The Court held that there is no automatic rule that all effects of a lapsed ordinance permanently survive.
Whether actions taken under an ordinance continue after its lapse depends on factors such as:
- nature of the right created
- public interest
- irreversible consequences
- whether undoing the action would create injustice
- constitutional scheme and legislative intent
This is known as the issue of enduring rights.
The Court rejected the idea that an ordinance can create permanent legal effects merely by operating for a short period.
Constitutional Significance
The judgment is significant because it strengthened legislative supremacy.
It clarified that ordinance-making is an exception to normal law-making. The executive cannot use it to replace the legislature.
The decision protects:
- separation of powers
- legislative accountability
- democratic debate
- constitutional morality
- rule of law
The judgment also made ordinance-making more accountable by allowing judicial review in cases where the power is used arbitrarily, fraudulently or for an improper purpose.
Conclusion
Krishna Kumar Singh v. State of Bihar, 2017 is one of the most important judgments on ordinance-making power in India.
The 7-Judge Bench held that repeated re-promulgation of ordinances is unconstitutional and that ordinances must be placed before the legislature.
The case reaffirmed that ordinances are temporary emergency instruments, not a substitute for regular law-making through the legislature.
