Krishna Kumar Singh vs State of Bihar - Case Analysis

Introduction of Krishna Kumar Singh vs State of Bihar

The case of Krishna Kumar Singh vs State of Bihar revolves around the constitutionality of the repeated re-promulgation of ordinances issued by the Government of Bihar regarding the takeover of privately managed Sanskrit schools. The High Court of Patna ruled against the state and declared the re-promulgation as unconstitutional. The decision was later upheld by the Supreme Court. The case involved a primary issue regarding whether re-promulgating the ordinance seven times without any attempt to pass a law was unconstitutional.

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Historical Context and Facts of Krishna Kumar Singh vs State of Bihar

The Government of Bihar in 1989 issued the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance. The ordinance directed the government to take over 429 Sanskrit schools privately managed which resulted in the transfer of teachers and employees from private management to state employment. This ordinance was never presented in the state legislature and was re-promulgated multiple times.

Issue presented before the High Court of Patna

An important issue was raised when teachers and employees from these schools filed a petition before the High Court of Patna seeking salaries and questioning the repeated re-promulgation of the ordinance. The main question before the court was whether re-promulgating the ordinance seven times without any attempt to pass a law was unconstitutional.

Decision of the High Court of Patna

The High Court of Patna held that the re-promulgation of the ordinance without sufficient justification was unconstitutional. The Court relied on the precedent set in D.C Wadhwa v. State of Bihar (1987) in which it was held that re-promulgation of ordinances violated the basic scheme of constitutionalism. 

The Court declared that only 305 out of the 429 schools were legal and should receive payment for salaries up to 30th April, 1992. The Court also ruled that the management of the schools should revert to the system that existed before the first ordinance was issued.

Appeal to the Supreme Court

The Government of Bihar filed an appeal in the Supreme Court against the decision of the High Court of Patna. However, the 2-Judge bench of the Supreme Court upheld the decision of the High Court of Patna and stated that re-promulgation of ordinances was a violation of constitutional principles calling it a “fraud on the power” under Article 213 of the Constitution. However, the Judges in this case differed on the validity of the first ordinance which led to the referral of the case to a larger bench.

Referral to a Larger Bench

In 1999, a three-judge bench referred the matter to a five-judge bench. Eventually, a seven-judge bench was convened to resolve the matter.

The main question which was addressed in this case-

• Whether any rights, duties, obligation created by an Ordinance will exist even after that particular ordinance ceases to operate? 
• Whether the Bihar government ordinances were legally valid in its nature?
• Whether Article 123 or 213 makes out a mandatory obligation on the part of the executive to present the ordinance in the Parliament and State Legislature respectively?
• Whether re-promulgation of an Ordinance goes against the basic spirit of constitutionalism?

Legal Provisions involved in Krishna Kumar Singh vs State of Bihar

Article 123 of the Constitution of India

Article 123 deals with the power of the President to promulgate Ordinances during recess of Parliament.

1. If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.
2. An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-
3. shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions
4. may be withdrawn at any time by the President.
5. If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

Article 133 of the Constitution of India

1. An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A-
2. that the case involves a substantial question of law of general importance
3. that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

• Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
• Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

Article 213 of the Constitution of India

• If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require-

Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if-

1. a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature
2. he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President
3. an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.

• An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance-

1. shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council
2. may be withdrawn at any time by the Governor.

• If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void

Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.

Judgment and Impact of Krishna Kumar Singh vs State of Bihar

The Supreme Court in this case addressed whether the repeated re-promulgation of ordinances violates the basic feature of constitutionalism. The court relied heavily on its earlier judgment in D.C. Wadhwa vs State of Bihar (1987) and held by a 5:2 majority that re-promulgation of ordinances undermines constitutional principles.

The majority opinion, authored by Justice D.Y. Chandrachud identified two major reasons- why re-promulgation is unconstitutional? 

1. The power granted under Articles 213 (for Governors) and 123 (for the President) to issue ordinances is meant for temporary situations when the legislature is not in session and re-promulgation defeats this purpose.
2. re-promulgating ordinances bypasses the authority of the legislature which is the supreme law-making body.

The court emphasized that the ordinance-making power of the President and Governor is subject to judicial review and must be exercised only when the legislature is not in session.

The Court also ruled that any rights, privileges, obligations, or liabilities under a re-promulgated ordinance would only survive if they met one of the following criteria- 

• the effect of the ordinance is irreversible
• reversing the consequences would be impractical or 
• there is a compelling public interest to continue the effect of the ordinance.

Thus, the Supreme Court in this case upheld the validity of the first three ordinances and the salaries paid to employees under those ordinances but clarified that the employees would not gain any enduring rights from the ordinances. It also upheld the directions of the High Court regarding salary payments and interest and held that the re-promulgation of ordinances without presenting them to the legislature is unconstitutional.

Conclusion

The Supreme Court in Krishna Kumar Singh vs State of Bihar held the validity of the first three ordinances and confirmed the salaries paid to employees under those ordinances. The Court also upheld the decision of the High Court regarding salary payments and interest and concluded that the re-promulgation of ordinances without legislative presentation is unconstitutional.