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Updated: Dec 4, 2021

Author: Sagarika Swapnil, Advocate from Patna High Court.

Co-author: Raj Krishna, LL.M. Student from NLIU Bhopal.


In the year 1989, Bihar Government passed the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance. The Ordinance provided for the taking over of 429 Sanskrit schools in the state of Bihar. The services of teachers and other employees of the school were to stand transferred to the state government.”

This Ordinance was followed by a series of Ordinances. Furthermore, it is pertinent to note that none of these ordinances were placed before any of the houses of the state legislature. The teachers of these Sanskrit schools claimed that due to these ordinances they have been given a status of government employee. As a result, they are entitled to claim salary from the State Government.

To claim their salaries the teachers of these Sanskrit schools filed a writ petition before the Patna High Court for claiming their salaries. However, the Patna High Court dismissed their writ petition and held that the repeated re-promulgation of the ordinances was unconstitutional.” The Court arrived at this reasoning on the basis of the Apex Court verdict in D.C. Wadhwa case wherein re-promulgation of ordinances was considered a fraud upon the Constitution.

Aggrieved by the decision of Patna High Court, some teachers filed an appeal before the Supreme Court. The division bench of the Supreme Court held that “the re-promulgated Ordinances were invalid. However, they differed on the decision as to whether the first ordinance was valid or not.” As a result, they referred the matter to a three-judge bench. In 1999, the three-judge bench referred this matter to a five-judge bench because the matter raised substantial questions relating to the constitution. In 2004 the matter was further referred to a bench of seven judges.


Arguments of the Appellants

The appellants argued before the Court that only the first Ordinance should be looked at in order to decide their status. The employees of the Sanskrit Schools became government servants on December 16, 1989 when the ordinance was promulgated. By the first amendment, the State Government took over the school property and the employees of those schools were therefore paid salaries on the same pay-scales as admissible to the government employees. This position as per the appellants could not be altered by the fourth amendment because the first ordnance created certain vested rights. To support their contention the petitioners relied upon the Apex Court judgments of Bhupender Kumar Bose and T. Venkata Reddy.

The appellants further went on to state before the Apex Court that in the case of T. Venkata Reddy the posts abolished by a particular Ordinance were not being revived after the Ordinance lapsed. Similarly, after the lapse of the first Ordinance the vested rights could not be taken away. Law did not become invalid when it ceased to operate.

Arguments of the Respondents

The State of Bihar contended before the Apex Court that because of the fourth ordinance there was no automatic take-over of the 429 Sanskrit Schools listed in the previous three Ordinances. It further argued before the Supreme Court that there were large numbers of non-existing schools. As a result, proper investigation was necessary both in terms of the existence of the school and the qualifications of the teachers and staff working there. Therefore, the teaching and non-teaching staff of the 429 Sanskrit Schools cannot be automatically transformed into Government service.

The State further contended that the enquiry was not complete at the time when the last Ordinance expired on 30th of April, 1992. Furthermore, the State Government did not take any further step to absorb any person employed in these Sanskrit schools. As a result, the teaching as well as non-teaching staff can’t be conferred the status of a government employee.


The majority judgment authored by Justice Chandrachud held that “the ordinance making power conferred upon the Executive by the Constitution is a conditional legislative power. The Executive can promulgate an ordinance only when the legislature is not in session. However, the ordinance promulgated would have same effect as law for a temporary period. Furthermore, there is a mandatory constitutional obligation on the government to lay the ordinance before the Legislature by virtue of Article 213 itself.”

The same is necessary so that the Legislature can have a control over the Executive because originally, it’s the Legislature which has the power to make laws and not the Executive. Justice Chandrachud also emphasized upon the decision in DC Wadhwa v. State of Bihar in which it was held that “such a re-promulgation of ordinances constitutes a fraud on the Constitution.” Apart from that it was also observed in the majority judgment that ordinances promulgated by the Executive are subject to judicial review.

Justice Chandrachud in his judgment also highlighted upon the ordinance making power in United Kingdom and pre-independence India. In United Kingdom no such power exists with the Executive to promulgate ordinances. This power did exist in the Colonial India and was subsequently put into the constitution to meet the situation of emergencies when the legislature is not in session.

Lastly it was held by Justice Chandrachud that “any act, right, privilege, obligation or liability to survive after an ordinance has ceased to operate, must satisfy three tests:

(i) Effect of the ordinance is irreversible;

(ii) Reversing the consequence of the ordinance is impractical.

(iii) There is a compelling public interest to continue the effect of the ordinance.”


The United Kingdom does not have a system of ordinances. So, we can say that power of ordinances is a unique feature of the Indian Parliamentary set-up. The President or the Governor on the advice of the Union Cabinet/State Cabinet has original legislative power to enact legislation with the same force and effect as Acts of the Parliament/State Legislature. Therefore, their frequent use or rather misuse would undermine the democratic mechanisms of a Parliamentary system. As a result, the author believes that the majority judgment is a well-reasoned judgment. The Court in this case has observed that ordinances are an exception and should be exercised in only situation of emergencies. It is because under the scheme of separation of powers it’s the Legislature who is supposed to make laws and not the Executive.

However even after 4 years of this judgment the tendency of our Executive has not improved. Ordinances, which were supposed to be promulgated at the time of emergencies, are often promulgated by the Executive in a very casual manner. The exception has become rule. As a result, the author believes that it is time for us to get rid of this colonial system of promulgating ordinances. Furthermore, it is pertinent to note that the system of ordinance exists in no modern democracy. The roots of ordinances lie in the British Raj. The Indian Council Act, 1861 allowed the governor general to promulgate ordinances in the situation of emergencies. This power continued till 1947.

However, during the drafting of the constitution Dr. BR Ambedkar said that – My submission to the House is that it is difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation which it must deal with ex hypothesi. It has not got the power to deal with that in the existing code of law. The emergency must be dealt with, and it seems to me that the only solution is to confer upon the president the power to promulgate the law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hypothesi, the legislature is not in session." As a result the power to promulgate ordinances was conferred upon the Executive. But unfortunately, this power has been continuously abused. Therefore, the author believes that the system of promulgating ordinances must go.

But now the question arises is that practically possible? The second question which arises is that what do countries like the USA or Canada do in the time of emergency? The answer is that they immediately summon the legislature. This is what the Parliament and the State Legislatures in India should do. If there is urgency summon the legislature immediately and get the law passed or else very soon the Executive would become a parallel law-making authority thereby violating the very basic principle of separation of powers.


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