SUPREME COURT in Krishna Kumar Singh & Anr. v. State of Bihar & Ors. [Civil Appeal No.5875 of 1994], a seven-judge Bench examined the power of the Executive to make law through ordinance, and inter alia held per majority, that the power conferred upon the President under Article 123 of the Constitution and the Governor under Article 213 is legislative in character and “is conditional in nature” as “it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action.”
also held “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; and (ii) it will cease to operate six weeks after
the legislature has reassembled or, even earlier if a resolution disapproving it is
passed. Moreover, an Ordinance may also be withdrawn”. It was clarified that “the
Ordinance making power does not constitute the President or the Governor into a
parallel source of law making or an independent legislative authority” and that
“consistent with the principle of legislative supremacy, the power to promulgate
ordinances is subject to legislative control.”
further held that “the requirement of laying an Ordinance before
Parliament or the state legislature is a mandatory constitutional obligation cast upon
the government. Laying of the ordinance before the legislature is mandatory
because the legislature has to determine: (a) The need for, validity of and
expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be
approved or disapproved; (c) Whether an Act incorporating the provisions of the
ordinance should be enacted (with or without amendments)”. “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”. It was held that “repromulgation of ordinances is a fraud on the Constitution and a sub-version of
democratic legislative processes”.
