T. Venkata Reddy Vs. State of Andhra
Pradesh [1985] INSC 71 (27 March 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA RANGNATH CHANDRACHUD, Y.V. ((CJ) DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1985 AIR 724 1985 SCR (3) 509 1985
SCC (3) 198 1985 SCALE (1)613
CITATOR INFO: RF 1987 SC1467 (2,3)
ACT:
E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.1
Constitution of India, 1950, Articles 123 and 213 Ordinance issuance
of-Propriety, expediency and necessity not of courts-Governor issuing an ordinance
abolishing certain posts-Ordinance lapsing and not replaced by Act-Posts
abolished by Ordinance- Whether deemed to be revived.
Andhra Pradesh Abolition of Post of Part-time
Village Officers Ordinance 1984, constitutional validity of- Ordinance lapsing-Not
replaced by Act-Posts abolished by Ordinance Whether revived.
HEADNOTE:
The, State of Andhra Pradesh was constituted
under the States Reorganisation Act. 1956 consisting of two areas known as the
'Andhra Area', and the 'Telangana Area'. There were different laws governing
the village administration in the two areas. The village establishment in the
Andhra Area which previously formed part of the State of Madras consisted of
headmen and karnams who were village officers and talyaris, vettis and
neergantis who were village servants. Their appointment and conditions of
service were governed by the Madras Hereditary Village Offices Act, 1895.
In the Telangana Area, the village establishment
consisted of the posts of patwaris, mali, patels and police patels who were
village officers and sethsindhis and neeradis who were village servants The
State Government appointed a Committee called the Village Officers Enquiry
Committee to review the existing system of part-time officers working at the
village level.
The Committee submitted its report in 1961
that it was necessary to reorganise the village establishment by appointment of
full-time officers with larger volume of work. It also recommended that steps
should be taken to reduce the number of posts by merger of functions and
increasing the area over which the village officers could exercise
jurisdiction.
In course of time, the Governor of Andhra
Pradesh promulgated rules under the proviso to Article 309 of the Constitution
called the Andhra pradesh 510 (Andhra Area) Village Offices Service Rules, 1969
providing for the regulation of the recruitment and conditions of service of
holders of village offices in the Andhra Area of the State of Andhra Pradesh
with effect from May 22, 1969, The State Legislature passed the Andhra Pradesh
Watans (Abolition) Act, 1978 which came into force with effect from December 8,
1977 abolishing all the watans-village offices in the Telangana Area of the
State. Simultaneously the Andhra Pradesh (Telangana Area) Village Offices
Service Rules, 1978 were promulgated by the Governor with effect from 7th
December 1977 providing for the recruitment and conditions of service of the
village officers in the Telangana Area. The village officers in both the areas
were however still part-time officers.
On January 6, 1984 on the recommendation of
the State Government. the Governor promulgated the Andhra Pradesh Abolition of
Posts of part-time Village Officers Ordinance, 1984 (Ordinance No. 1 of 1984).
Section 2(d) of the Ordinance defined the
expression 'part-time village officer' as a person who held any of the village
offices of headman, munsiff, reddy, monigar, peddakapu, patel, karnam or
patwari or triune officer or holder of any such village office by whatever
designation it may be locally known including their assistants.
Section 3 of the Ordinance declared that the
posts of part-time village officers in the State of Andhra Pradesh as defined
in section 2(d) thereof stood abolished with effect on and from the date of the
commencement of the Ordinance which came into force at once, and every person
who held the post of part time village officer in any art of the State would
with effect on and from that date cease to hold such posts. By virtue of this
provisions the posts of part-time village officers ceased to be in existence on
January 6, 1984 and the incumbents of those posts ceased to he employees of the
Government on and from that date.
The Ordinance was not replaced by an Act of
the State Legislature but it was succeeded by four ordinances namely Ordinance
No. 7 of 1984, 13 of 1984, 18 of 1984 and 21 of 1984.
The petitioners who were part-time village
officers questioned the constitutional validity of this Ordinance by petitions
filed both in this Court and in the High Court.
The petitions filed in the High Court were
withdrawn to this Court under Article 139 A.
The Counsel for the Petitioners did not urge
the other points in view of these decisions.
Gazula Dasaratha Rama Rao v. The State of
Andhra Pradesh & Ors., [1961] 2 S.C.R. 931, B.R. Sharkaranarayana &
Ors. v. The State of Mysore & Ors., (A.l.R. 1966 S.C.C.
1571), K Rajendran & Ors. etc. etc. v.
State of Tamil Nadu
511 It was however contended ml behalf of the
petitioners (i)that the Ordinance was void and ineffective due to lack of
application of mind by the Governor to the subject-matter of the Ordinance,
(ii) that the Ordinance having lapsed as the Legislature did not pass an Act in
its place, the posts which were abolished should be deemed to revived, and the
issue of successive ordinances the subsequent one replacing the earlier one did
not serve any purpose, and (iii) that the abolition of posts and the consequent
deprivation of the right of the petitioners to hold the said posts amounted to
an infringement of their fundamental right to life and personal liberty
guaranteed under Article 21 of the Constitution .
Dismissing the Writ Petitions.
^
HELD: 1. Under Article 123 of the
Constitution the President can promulgate an ordinance on the advice of the
Council of Ministers to meet the requirement of a situation when either House
of Parliament is not in session. Similarly under Article 213 of the
Constitution the Governor may issue an ordinance on the advice of this Council
of Ministers when the Legislative Assembly or where there are two Houses of the
Legislature in a State either of them is not in session.
Since under Article 85 of the Constitution it
is not permissible to allow a period of six months to intervene in the case of
each Mouse of Parliament between its last sitting in one session and the date
appointed for its first meeting in the next session and since under clause (2)
of Article 123 of the Constitution an ordinance has to be laid before both
Houses of Parliament and would cease to operate at the expiration of six weeks
from the reassembly of Parliament, it cannot be said that either House can be
avoided by the President beyond seven and a half months after the passing of an
ordinance. It is open to Parliament if it chooses to approve it or not. Having
regard to the conditions prevailing in India the Constitution makers thought
that the ordinance making power should be given to the President to deal with
unforeseen or urgent matters- The position under Article 213 of the
Constitution is also the same. [523D-G]
2. The Legislative action under our
Constitution is subject only to the imitations prescribed by the Constitution
and to no other. Any law made by the Legislature, which it is not competent to
pass, which is violative of the provisions in Part III of the Constitution or
any other constitutional provision is in-effective.
[525G-H]
3. The motives of the legislature in passing
a statute is beyond the scrutiny of courts. Nor can the courts examine whether
the legislature had applied its mind to the provisions of a statute before
passing it. The propriety expediency 'and necessity of a legislative act are
for the determination of the legislative authority and are determination by the
courts. An ordinance passed either under Article 123 or under Article 213 of
the Constitution stands on the same footing. When the Constitution says that
the ordinance making power is 512 legislative power and an ordinance shall have
the same force as an Act, an ordinance should be clothed with all the
attributes of an Act of legislature carrying with it all its incidents,
immunities and limitations under the Constitution. It cannot be treated as an
executive action or an administrative decision.
Gazula Dasaratha Rama Rao v. The State of
Andhra Pradesh & Ors" [1961] 2 S.C.R. 931 B.R. Shankaranarayana &
Ors., v. The State of Mysore & Ors, (A.I.R. 1966 S.C. 1571), K. Rajendran
& Ors. etc. etc. v. State of Tamil Nadu & Ors., 11982] 3 S.C.R. 628,
Lakhi Narayan Das v. The Province of Bihar, []949) F.C.R. Vol. Xl 693, R.R.
Garg etc. etc. v.
Union of India & Ors. etc. [19821 I
S.C.R. 947 and A.K. Roy etc. v. Union of India & Anr., [1982] 2 S. C.R. 272
at page 299. referred to.
4. Article 213 of the Constitution does not
say that the Ordinance shall be void from the commencement on the State
Legislature disapproving it. It says that it shall cease to operate. It only
means that it should be treated as being effective till it ceases to operate on
the happening of the events mentioned in clause (2) of Article 213. In the
instant case, the Andhra Pradesh Abolition of Posts of Part- time Village
Officers ordinance 1984 deals with two separate matters. By clause 3 it
abolishes the posts of part-time village officers on the commencement of the
Ordinance and it further declares that every person who held the post of a
part-time village officer would cease to hold that post with effect from that
date. By clause 4 and other allied provisions, the Ordinance has provided for
the creation of posts of Village Assistants and appointment and conditions of
service of Village Assistants who are full-tin-e employees of the Government.
There is no doubt that a separate provision is made in clause 5 of the
Ordinance for payment of some amount to the ex-part-time village officers
[528H; 529A-C] 5.A mere disapproval by Parliament or the State Legislature of
an ordinance cannot, however, revive closed or completed transactions.
6. The abolition of the posts and the
declaration that the incumbents of those posts would cease to be holders of
those posts under clause 3 of the Ordinance being completed events. there is no
question of their revival or the petitioners continuing to hold those posts any
longer.
7. Even if the other provisions of the Ordinance
have ceased to be in force, there can be no constitutional difficulty arising
therefrom because it is open to the State Government to create new posts in
exercise of its powers under Article 162 of the Constitutional as long as the
field is not occupied by an Act of the Legislature or a rule made under the
proviso to Article 309 of the Constitution.[531 E- F] State of Orissa v.
Bhupendra Kumar Bose, [1962] 2 Supp.
380, referred to.
Steavenson v. Oliver 151 English Reports
1024, referred to.
513 & ORIGINAL JURISDICTION: Writ
Petition Nos. 623, 1546/84 etc. etc.
Under Article 32 of the Constitution of
India.
Subramanya Poty, T.S. Krishnamurty Iyer, Miss
Malini Poduval, B. Kanta Rao, Subodh Markandeya, Mrs. Sheil Sethi, A.K Ganguli,
A.K. Charkarvarti, C.S. Vaidyanathan and Prabir Choudhary, G.N. Rao T.C. Gupta.
and Attar Singh for the appearing Petitioners.
K. Subramanya Reddy, Adv. Genl. (AP), E.
Manohar, Addl.
Adv. Genl (AP), T.V.S.N. Chari, Kailash
Vasudev Sudash Menon and Miss Vrinda Grover, and B. Parthasarthi for the
Respondents.
D.K Sen, P.P. Singh and R.N. Poddar. for the
U.O.I.
K Ram Kumar for the Intervener.
The judgment of the Court was delivered by
VENKATARAMIAH, J. In the above writ petitions filed under Article 32 of the
Constitution the petitioners have questioned the constitutional validity of the
Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984
(Ordinance No. 1 of 1984) (hereinafter referred to as 'the Ordinance')
promulgated by the Governor of Andhra Pradesh on January 6, 1984 in exercise of
his powers under Article 213 of the Constitution by which the posts of part-
time Village Officers in the State of Andhra Pradesh came to be abolished and
provision was made for the appointment of Village Assistants. Some of the
petitions which are disposed of by this judgment had been filed before the High
Court of Andhra Pradesh under Article 226 of the Constitution for similar
reliefs. They were withdrawn to this Court under Article 139A of the
Constitution form hearing them along with the petitions filed under Article 32.
Section 2(d) of the Ordinance defined the
expression 'part-time village officer' as a person who held any of the village
offices of headman, munsiff, reddy, monigar, peddakapu, patel, karnam or
patwari or triune officer or holder of any such village office by whatever
designation it may be locally known including their 514 assistants appointed
under (i) the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969,
(ii) the Andhra Pradesh (Telangana Area) Village Offices Service Rules, 1978 or
(iii) any other law. The petitioners were the holders of these posts
immediately prior to the date of the promulgation of the Ordinance.
It is necessary to set out at this stage a
brief history of the posts held by the petitioners. The State of Andhra Pradesh
was constituted under the States Reorganisation Act, 1956 consisting of two
areas known as the 'Andhra Area' and the 'Telangana Area'. There were different
laws governing the village administration in the two areas. The village
establishment in the Andhra Area which previously formed part of the State of
Madras consisted of headmen and karnams who were village officers and talyaris,
vettis and neergantis who were village servants. Their appointment and
conditions of service were governed by the Madras Hereditary Village-Offices
Act, 1895 (Madras Act No. III of 1895). They were originally hereditary
offices. In Gozula Dasaratha Rama Rao v. The State of Andhra Pradesh &
Ors.(l) decided on December 6, 1960 this Court held that section 6(1) of the
said Act which provided for appointment of village officers and servants on the
hereditary basis was hit by Article 16(2) of the Constitution and was,
therefore, void. In the Telangana Area, the village establishment consisted of
the posts of patwari, mali patels and police patels who were village officers
and sethsindhis and neeradis who were village servants. Their duties and
responsibilities were laid down by 'Dastur-ulAmal' 1293 Hijri (Fasli 1285) and
'Dastur-e- Dehi'. These posts were also hereditary in character. They were also
known as watans. After the decision of this Court referred to above, the
Government of Andhra Pradesh appointed a Committee called the Village Officers
Enquiry Committee under G.O.Ms. No. 1042, Revenue (1) dated June 16, 1961 to
propose, among others a scheme for the village establishment of the entire
State of Andhra Pradesh under the chairmanship of K.M. Unnithan, I.C.S. since
the State Government was of the view that the then existing system of part-time
officers working at the village level was not conducive to the interests of
public administration. The said Committee submitted its report in 1961. It
found that taking an overall view of the nature and quantum of work of the
village officers in the two areas of the (1) [1961] 2 S.C.R.. 931.
515 State there was not enough work for all
village officers and that it was necessary to reorganise the village
establishment by appointment of full-time officers with larger volume of work.
The Committee recommended that steps should be taken to reduce the number of
posts by merger of functions and increasing the area over which the village
officers could exercise jurisdiction. In course of time, the Governor of Andhra
Pradesh promulgated rules under the proviso to Article 309 of the Conitution
called the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969
providing for the regulation of the recruitment and conditions of service of
holders of village offices in the Andhra Area of the State of Andhra Pradesh
with effect from May 22, 1969. The Legislature of the State of Andhra Pradesh
passed the Andhra Pradesh Watans (Abolition) Act, 1978 which came into force
with effect from December 8, 1977 abolishing all the watans (village offices
together with the properties appertaining to them) other than sethsindhis and
neeradies in the Telangana Area of the State. Simultaneously the Andhra Pradesh
(Telangana Area) Village Offices Service Rules, 1978 were promulgated by the
Governor with effect from 7th December, 1977 providing for the recruitment and
conditions of service of the village officers in the Telangana Area. The
village officers in both the areas were, however, still part-time officers.
Then on January 6, 1984 on the recommendation of the State Government the
Governor promulgated the Ordinance which is challenged in these proceedings.
Section 3 of the Ordinance declared that the
posts of part-time village officers in the State of Andhra Pradesh as defined
in section 2(d) thereof stood abolished with effect on and from the date of the
commencement of the Ordinance which came into force at once and every person
who held the post of part-time village officer in any part of the State of
Andhra Pradesh would with effect on and from that date cease to hold such post.
By virtue of the said provision, the posts of part-time village officers ceased
to be in existence on January 6, 1984 and the incumbents of those posts ceased
to be employees of the Government on and from that date. Thus the transaction
of abolition of posts became an accomplished fact on January 6, 1984 and there
remained nothing more to be done with regard to that event. What remained to be
done was perhaps payment of amount, if any, to those who thereby ceased to be
the employees of Government as provided by section 5 of the 516 Ordinance and
the recruitment of persons as Village Assistants as provided by section 4 of
the Ordinance for one or more revenue villages and the framing of rules
relating to the conditions of their service as provided by section 6 of the
Ordinance. The remaining provisions of the Ordinance were ancillary and incidental
to the abolition of posts and the filling up of the new posts of Village
Assistants. The abolition of the posts was, however, not dependent upon the
filling up of the new posts of Village Assistants. They were two independent
transactions. The abolition of the posts of part-time village officers became
elective on the coming into force of the Ordinance. It may be stated here that
the Ordinance has not yet been replaced by an Act of the State Legislature. It
is, however, succeeded by four ordinances viz. Ordinance No. 7 of 1984,
Ordinance No. 13 of 1984, Ordinance No. 18 of 1984 and Ordinance No. 21 of
1984.
These petitions are in line with two cases
which have already been decided by this Court viz. B.R.
Shankaranarayana & Ors. v. The State of
Mysore & Ors.(1) in which the constitutionality of the Mysore Village
Offices Abolition Act, 1961 (Act No. 14 of 1961) was upheld and K.
Rajendran & Ors. etc. etc. v. State of
Tamil Nadu & Ors.(2) in which the validity of the Tamil Nadu Abolition of
Posts of Part-time Village Officers Ordinance, 1980 (Tamil Nadu Ordinance No.
10 of 1980) and of the Tamil Nadu Abolition of Posts of Part-time Village
Officers Act, 1981 (Tamil Nadu Act No.3 of 1981) was upheld. Hence the learned
counsel for the petitioners very fairly, and we think rightly, did not many of
the contentions which has been rejected by this Court in the said decisions.
They, however, pressed the following contentions before us in support of the
petitions:
(i) that the Ordinance is void and ineffective
due to lack of application of mind by the Governor to the subject matter of the
Ordinance;
(ii) that the Ordinance having lapsed as the
Legislature did not pass an Act in its place, the posts which were abolished be
deemed to have revived and the issue of (1) A.l.R.1966 S.C.1571.
(2) 119821 3 S.C.R. 628.
517 successive ordinances the subsequent one
replacing the earlier one did not serve any purpose; and (iii)that the
abolition of posts and the consequent deprivation of the right of the
petitioners to hold the said posts amounted to an infringement of their
fundamental right to life and personal liberty guaranteed under Article 21 of
the Constitution.
Before dealing with the above contentions of
the petitioners it is useful to refer to the provisions of the Constitution
relating to the power of the Executive to make laws by the issue of ordinances.
In the instant cases the Ordinance is issued by the Governor in exercise of the
legislative power conferred on him under Article 213 of the Constitution. Article
213 reads thus:
"213. (1) 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- (a) 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; or (b) he would have deemed it necessary to reserve a Bill containing
the same provisions for the consideration of the President; or (c) 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 on the President, it had receive(l the assent of the President.
518 (2) An ordinance promulgated under this
article shall have the same force and effect as an Act of the Legislature of
the State assented to by the Governor, but every such Ordinance- (a) 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 re assembly 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; and (b) may be withdrawn at any time
by the Governor.
Explanation.-Where the Houses of the
Legislature of a State having a Legislative Council are summoned to re assemble
on different dates, the period of six weeks shall be reckoned from the later of
those dates for the purposes p, of this clause.
(3) 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 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." Article 213 of the Constitution corresponds to Article 123 of the
Constitution which confers similar powers on the president in 519 relation to
matters on which Parliament can make laws.
Article 123 reads thus:
"123. (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 Ordinances 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- (a) 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;
and (b) may be withdrawn at any time by the
President.
Explanation.-Where the Houses of Parliament
are summoned to reassemble on different dates, the period of six weeks shall be
reckoned from the later of those dates for the purposes of this clause.
(3) 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." The slight difference that
exists between the above two articles arises on account of the need to obtain
the assent of the President on certain legislative matters even though they are
within the legislative competence of the State Legislature but that does not
make any difference regarding the points to be considered in these petitions
because they are common to both Article 123 and Article 213 of the
Constitution, At the outset the learned counsel for the petitioners questioned
the constitutional propriety of the power of the Executive to make laws which
would have a lasting effect on the rights of people in a 520 democratic society
where peoples' representatives should ordinarily be entrusted with the duty of
making such laws.
It is true that while our Constitution has
adopted the pattern of separation of powers amongst the three organs of the
Government, namely, the Legislature, the Executive and the Judiciary, it has
conferred legislative power on the Executive subject to certain conditions by
enacting Article 123 and Article 213 of the Constitution. It has also
associated the President and the Governor with the making of the laws even when
Parliament or the State Legislature, as the case may be, enacts them. Article
79 of the Constitution says that there shall be a Parliament for the Union
which shall consist of the President and two Houses to be known respectively as
the Council of States (Rajya Sabha) and the House of people (Lok Sabha). The
assent of the President to a Bill passed by both the Houses of Parliament is
essential for its becoming law under Article 111 of the Constitution.
Similarly under Article 168 of the,
Constitution it is provided that the State Legislature consists of the Governor
and the Legislative Assembly of a State and where there is a Legislative
Council, the State Legislature consists of the Governor and the two Houses. The
Governor's assent or the President's assent when it is reserved for his
consideration to a Bill passed by the State Legislature is necessary under
Article 200 of the Constitution before it can become law.
The powers conferred on the President under
Article 123 and on the Governor under Article 213 of the Constitution are,
however, Legislative powers which may be exercised without prior approval of
the concerned legislature.
In India the Governor-General had been given
the power under section 72 of the Government of India Act, 1915 to make
ordinances which read thus:
"72. Power to make ordinances in case of
emergency. The Governor-General may, in cases of emergency, make and promulgate
ordinances for the peace and good government of British India or any part
thereof, and any ordinance so made shall, for the space of not more than six
months from its promulgation, have the like force of law as an Act passed by
the Indian legislature but the power of making ordinances under this section is
subject to the like restrictions as the power of the Indian Legislature to make
laws; and any ordinance made under this 521 section is subject to the like
disallowance as and Act passe by the Indian legislature and may be controlled
or superseded by any such Act." It is seen that the above provision stated
that an ordinance made under it had the force of law as an Act passed by the
Indian legislature but the power of making ordinances under it was subject to
like restrictions as the power of the Indian legislature to make laws and any
ordinance made under this section was to remain in force for the period of not
more than six months from the date of its promulgation unless adopted or
superseded earlier by an Act of the Legislature. Chapter IV of Part II of the
Government of India Act, 1935 recognised three kinds of legislative powers
enjoyed by the Governor-General. Section 42 of that Act conferred the power on
the Governor-General to promulgate ordinances during the recess of Legislature.
Section 43 of that Act conferred the power on
him to promulgate ordinances at any time with respect to certain subjects and
section 44 conferred the power on him in certain circumstances to enact Acts.
Chapter IV of Part V of the Government of India Act, 1935 which contained
sections 88,89 and 90 conferred similar legislative powers on the Governors of
Provinces. Articles 123 and 213 of the Constitution have been enacted on the
pattern of sections 42 and 88 of the Government of lndia Act, 1935. The
relevant part of section 42 of the Government of India Act, 1935 is given below
for ready reference. It read thus:- "42. Power of Governor-General to
promulgate ordinances during recess of Legislature.
(1) If at any time when the Federal
Legislature is not in session the Governor-General 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 require:
(2) An ordinance promulgated under this
section shall have the same force and effect as an Act of the Federal
Legislature assented to by the Governor General, but every such ordinance- (a)
shall be laid before the Federal Legislature and shall cease to operate at the
expiration of six weeks from 522 the reassembly of the Legislature, or, if
before the expiration of that period resolutions disapproving it are passed by
both Chambers, upon the passing of the second of those resolutions;
(b) shall be subject to the provisions of
this Act relating to the power of His Majesty to disallow Acts as if it were an
Act of the Federal Legislature assented to by the Governor-General;
and (c) may be withdrawn at any time by the
Governor General.
(3) If and so far as an ordinance under this
section makes any provision which the Federal Legislature would not under this
Act be competent to enact, it shall be void." Section 88 of the Government
of India Act, 1935 which was more or less in similar terms and which conferred
power on the Governor of a province to issue an ordinance came up for
consideration before the Federal Court of lndia in Lakhi Narayan Das v. The
Province of Bihar(1) Mukherjee, J.
speaking for the Federal Court observed at
pages 699-700 thus:
"It is admitted that the Bihar
Legislature was not in session when this Ordinance was passed. It was urged,
however, in the Court below, and the argument was repeated before us, that no
circumstance existed as is contemplated by s. 88 (1) which could justify the
Governor in promulgating this Ordinance. This obviously is a matter which is
not within the competence of court to investigate. The language of the section
shows clearly that it is the Governor and the Governor alone who has got to
satisfy himself as to the existence of circumstances necessitating the
promulgation of an Ordinance. The existence of such necessity is not a
justiciable matter which the Courts could be called upon to determine by
applying an objective test. It may be noted here that under the Government of
India Act the Governor-General has powers to make Ordinances in cases of
emergency (vide s. 42 of the Government of (4) [1949] F.C.R. Vol. Xl 693.
523 India Act and s. 72 of Sch. IX which is
now omitted);
and it was held by the Privy Council in King
Emperor v. Benoarilal (1945) 72 I.A. 57, and Bhagat Singh v.
The King Emperor (1931 ) 58 I.A. 169, that
the emergency which calls for immediate action has to be judged by the
Governor-General alone. On promulgating an ordinance, the Governor-General is
not bound as a matter of law to expound reasons therefor, nor is he bound to
prove affirmatively in a court of law that a state of emergency did actually
exist. The language of s. 88 postulates only one condition, namely, the
satisfaction of the Governor as to the existence of justifying circumstances,
and the preamble to the Ordinance expresses in clear terms that this condition
has been fulfilled. The first contention of the appellants must therefore be
rejected." Under Article 123 of the Constitution the President can
promulgate an ordinance on the advice of the Council of Ministers to meet the
requirements of a situation when either House of Parliament is not in session.
Similarly under Article 213 of the Constitution the Governor may issue an
ordinance on the advice of his Council of Ministers when the Legislative
Assembly or where there are two Houses of the Legislature in a State either of
them is not in session. Since under Article 85 of the Constitution it is not
permissible to allow a period of six months to intervene in the case of each
House of Parliament between its last sitting in one session and the date
appointed for its first meeting in the next session and since under clause (2)
of Article 123 of the Constitution an ordinance has to be laid before both
Houses of Parliament and would cease to operate at the expiration of six weeks
from the reassembly of Parliament, it cannot be said that either Houses can be
avoided by the President beyond seven and a half months after the passing of an
ordinance. It is open to Parliament if it chooses to approve it or not. Having
regard to the conditions prevailing in India the Constitution makers a thought
that the ordinance making power should be given to the President to deal
unforeseen or urgent matters. The position under Article 213 of the
Constitution is also the same. Dealing with the criticism that Article 123 was
an undemocratic provision, Bhagwati, J. speaking for the majority of the
Constitution Bench said in R.K. Garg etc.
etc. v. Union of India & Ors. etc.(l) at
pages 965-966 thus:
(1) [1982] 1 S.C.R. 947.
524 "Now at first blush it might appear
rather unusual and that was the main thrust of the criticism of Mr.
R.K. Garg on this point-that the power to
make laws should have been entrusted by the founding fathers of the
Constitution to the executive, because according to the traditional outfit of a
democratic political structure, the legislative power must belong exclusively
to the elected representatives of the people and vesting it in the executive,
though responsible to the legislature, would be undemocratic, as it might
enable the executive to abuse this power by securing the passage of an ordinary
bill without risking a debate in the legislature. But if we closely analyse this
provision and consider it in all its aspects, it does not appear to be so
startling, though we may point out even if it were, the Court would have to
accept it as the expression of the collective will of the founding fathers. It
may be noted, and this was pointed out forcibly by Dr. Ambedkar while replying
to the criticism against the introduction of Article 123 in the Constitution
Assembly-that the legislative power conferred on the President under this
Article is not a parallel power of legislation. It is a power exercisable only
when both Houses of Parliament are not in session and it has been conferred
ex-necessitate in order to enable the executive to meet an emergent situation.
Moreover, the law made by the President by issuing an Ordinance is of strictly
limited duration.
It ceases to operate at the expiration of six
weeks from the reassembly of Parliament or if before the expiration of this
period, resolutions disapproving it are passed by both Houses, upon the passing
of the second of those resolutions. This also affords the clearest indication
that the President is invested with this legislative power only in order to
enable the executive to tide over an emergent situation which may arise whilst
the Houses of Parliament are not in session. Further more, this power to
promulgate an Ordinance conferred on the President is co-extensive with the
power of Parliament to make laws and the President cannot issue an Ordinance
which Parliament cannot enact into a law. It will therefore be seen that legislative
power has been conferred on the executive by the constitution makers for a
necessary purpose and it is hedged in by limitations and conditions. The con-
525 ferment of such power may appear to be undemocratic but it is not so,
because the executive is clearly answerable to the legislature and if the
President, on the aid and advice of the executive, promulgates an Ordinance in
mis-use or abuse of this power, the legislature cannot only pass a resolution
disapproving the Ordinance but can also pass a vote of no confidence in the
executive. There is in the theory of constitutional law complete control of the
legislature over the executive, because if the executive misbehaves or forfeits
the confidence of the legislature, it can be thrown out by the legislature. Of
course this safeguard against misuse or abuse of power by the executive would
control in efficacy and value according as if the legislative control over the
executive diminishes and the executive begins to dominate the legislature. But
nonetheless it is a safeguard which protects the vesting of the legislative
power in the President from the charge of being an undemocratic
provision." The above view has been approved by another Constitution Bench
of this Court in A.K. Roy etc. v. Union of lndia & Anr.(1) Both these
decisions have firmly established that an ordinance is a 'law' and should be
approached on that basis. The language of clause (2) of Article 123 and of
clause (2) of Article 213 of the Constitution leaves no room for doubt. An
ordinance promulgated under either of these two articles has the same force and
effect as an Act of Parliament or an Act of the State Legislature, as the case
may be. When once the above conclusion is reached the next question which
arises for consideration is whether it is permissible to strike down an
ordinance on the ground of non-application of mind or mala fides or that the
prevailing circumstances did not warrant the issue of the Ordinance. In other
words, the question is whether the validity of an ordinance can be tested on
grounds similar to those on which an executive or judicial action is tested.
The legislative action under our Constitution is subject only to the
limitations prescribed by the Constitution and to no other. Any law made by
their legislature, which it is not competent to pass, which is violative of the
provisions in Part III of the Constitution or any other constitutional
provision is (1) [1982]2 S.C.R. 272 at page 299.
526 ineffective. It is a settled rule of
constitutional law that the question whether a statute is constitutional or not
is always a question of power of the legislature concerned, dependent upon the
subject matter of the statute. the manner in which it is accomplished and the
mode of enacting it.
While the courts can declare a statute
unconstitutional when it transgresses constitutional limits, they are precluded
from inquiring into the propriety of the exercise of the legislative power. It
has to be assumed that the legislative discretion is properly exercised. The
motives of the legislature in passing a statute is beyond the scrutiny of
courts. Nor can the courts examine whether the legislature had applied its mind
to the provisions of a statute before passing it. The propriety expediency and
necessity of a legislative act are for the determination of the legislative
authority and are not for determination by the courts. An ordinance passed
either under Article 123 or under Article 213 of the Constitution stands on the
same footing. When the Constitution says that the ordinance making power is
legislative power and an ordinance shall have the same force as an Act, an
ordinance should be clothed with all the attributes of an Act of legislature
carrying with it all its incidents, immunities and limitations under the
Constitution. It cannot be treated as an executive action or an administrative
decision.
The true legal position about the
justiciability of these issues in relation to an ordinance has been expressed
in K. Nagaraj & Ors.etc. v. State of Andhra Pradesh & Anr.
etc.(l) at page 50 by one of us (Chandrachud,
C.J.) thus:
"It is impossible to accept the
submission that the Ordinance can be invalidated on the ground of non-
application of mind. the power to issue an ordinance is not an executive power
but is the power of the executive to legislate. The power of the Governor to
promulgate an ordinance is contained in Article 213 which occurs in Chapter IV
of Part VI of the Constitution. The heading of that Chapter is
"Legislative Power of the Governor." This power is plenary within its
field like the power of the State Legislature to pass laws and there are no
limitations upon that power except those to which the legisla- (1) [1985] 1
SCALE 31.
527 tive power of the State Legislature is
subject There fore, though an ordinance can be invalidated for contravention of
the constitutional limitations which exist upon the power of the State
legislature to pass laws it cannot be declared invalid for the reason of
non-application of mind, any more than any other law can be. An executive act
is liable to be struck down on the ground of non-application of mind. Not the
act of a Legislature.
On the question as to the legislative
character of the ordinance making power, we may refer to the decisions of this
Court in A.K. Roy v. Union of India and R.K. Garg v. Union of India." The
ordinance says that it had been Promulgated on the basis of a policy decision
taken by the State Government. The relevant part of the Ordinance reads:
"Whereas the State Government are of the
opinion that the system of part-time village officers is out- moded and does
not fit in with the modern needs of village administration;
And whereas the State Government have, after
careful consideration, taken a policy decision to abolish all the posts of
part-time village officers on grounds of administrative necessity and to
introduce a system of whole-time officers to be in charge of village
administration;
And whereas the Legislature of the State is
not in session and the Governor of Andhra Pradesh is satisfied that circumstances
exist which render it necessary for him to take immediate action;
Now, therefore, in exercise of the powers
conferred by clause (1) of article 213 of the Constitution of India, the
Governor hereby promulgates the following Ordinance." It is next seen that
the State Government introduced a Bill L.A. No. 3 of 1984 before the
Legislative Assembly of the State to replace the Ordinance by an Act o n
February 24, 1984 within about seven weeks from the date of the Ordinance. The
said Bill was referred to a Joint Select Committee and the Bill was not passed
528 till June 7, 1984. In order to keep the effect of the Ordinance alive for
purposes of any action that was still to be taken under it the Governor on the
advice of the Council of Ministers again issued another ordinance, Ordinance
No. 7 of 1984 dated March 21,1984. This was followed by Ordinance No. 13 of
1984 dated April 27, 1984, Ordinance No. 18 of 1984 dated June 7, 1984 and
Ordinance No. 21 of 1984 dated July 19, 1984. In order to give effect to
section 11 (1) of the Ordinance, the State Government promulgated the Andhra
Pradesh Abolition of part-time Village Officers (Fixation of amount payable for
total service) Rules, 1984 on February 24, 1984 and an Errata to the above
Rules on March 27, 1984.
In the circumstances of the case we do not,
therefore, find any substance in the first contention urged on behalf of the
petitioners.
The next question is whether the posts of
part-time village officers revive as the Ordinance is not replaced by an Act of
the legislature of the State. This contention of the petitioners is based on
clause (2) of Article 213 of the Constitution. It is argued on their behalf
that on the failure of the State Legislature to pass an Act in terms of the
Ordinance it should be assumed that the Ordinance had never become effective
and that it was void ab initio. This contention overlooks two important factors
namely the language of clause (2) of Article 213 of the Constitution and the
nature of the provisions contained- in the Ordinance. Clause (2) of Article 213
says that an ordinance promulgated under that Article shall have the same force
and effect as an Act of the Legislature of the State assented to by the
Governor but every such ordinance (a) 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 and (b) may be withdrawn at any time by the Governor. It is seen that
Article 213 of the Constitution does not say that the Ordinance shall be void
from the commencement on the State Legislature disapproving it. It says that it
shall cease to operate. It only means that it should be treated as being
effective till it ceases to operate on the happening of the events mentioned;
529 in clause (2) of Article 213. Secondly
the Ordinance deals with two separate matters. By section 3 of the Ordinance it
abolishes the posts of part-time village officers on the commencement of the
Ordinance and it further declares that every person who held the post of a
part-time village officer would cease to hold that post with effect from that
date. By section 4 and other allied provisions the Ordinance has provided regarding
the creation of posts of Village Assistants and appointment and conditions of
service of Village Assistants who arc full time employees of the Government
There is no doubt that a separate provision is made in Section 5 of the
Ordinance for payment Or some amount to the ex-part-time village officers. Now
by virtue of section 3 of the Ordinance all the posts of part-time village
officers stood abolished on January 6,1984 and the petitioners ceased to be
employees of the State Government These two matters became accomplished facts
on January 6, 1984, irrespective of whether the holders of these posts were
paid any amount under section 5 or whether the new posts of Village Assistants
were filled up or not. when if the Ordinance is assumed to have ceased to
operate from a subsequent date by reason of clause (2) of Article 213, the
effect of section 3 of the Ordinance was irreversible except by express
Legislation. An analogous question arose for consideration before a
Constitution Bench of this Court in State of Orissa v. Bhupendra Kumar Bose.(1)
The facts of that case were these. Elections were held for the Cuttack
Municipality and twenty seven persons were declared elected as Councillors. One
of the defeated candidates filed a writ petition before the High Court of
Orissa challenging the elections. The High Court set aside the elections on the
ground that the electoral roll had not been prepared in accordance with law.
Since the State Government felt that the said decision affected not merely the
elections to the Cuttack Municipality but some other municipalities in the
State of Orissa where also similar irregularities had been committed in the
preparation of the electoral rolls, the Governor promulgated an ordinance on
January 15, 1959 which contained provisions validating the electoral rolls and
the elections held on their basis notwithstanding any judgment to the contrary.
The said ordinance, however, lapsed on April I, 1959. The petitioner when had
filed the writ petition earlier again filed another writ petition questioning
the continuance of the elected Councillors in office by virtue of the
ordinance. The High (1) [1962] 2 Supp. S.C.R. 380.
530 Court allowed the writ petition and
issued an injunction to the elected Councillors restraining them from functioning
as Councillors. The State Government and the councillors filed the above appeal
before this Court. It was contended that the ordinance was a temporary statute
which was bound to lapse after the expiration of the prescribed period and so
as soon as it lapsed the invalidity in the elections to the Cuttack
Municipality stood revived. This Court rejected the contention relying upon the
decision in Steavenson v.
Oliver.(l) This Court finally observed at
pages 401-402 thus:
"Now, turning to the facts in the
present case, the Ordinance purported to validate the elections to the Cuttack
Municipality which had been declared to be invalid by the High Court by its
earlier judgment so that as a result of the Ordinance, the elections to the
Cuttack Municipality must be held to have been valid.
Can it be said that the validation was
intended to be temporary in character and was to last only during the life-time
of the Ordinance ? In our opinion, having regard to the object of the Ordinance
and to the rights created by the validating provisions, it would be difficult
to accept the contention that as soon as the Ordinance expired the validity of
the elections came to an end and their invalidity was revived. The rights
created by this Ordinance are, in our opinion, very similar to the rights with
which the court was dealing in the case of Steavenson and they must be held to
endure and last even after the expiry of the Ordinance.
The Ordinance has in terms provided that the
Order of Court declaring the elections to the Cuttack Municipality to be l;
invalid shall be deemed to be and always to have been of no legal effect
whatever and that the said elections are thereby validated. That being so, the
said elections must be deemed to have been validly held under the Act and the
life of the newly elected Municipality would be governed by the relevant
provisions of the Act and would not come to an end as soon as the Ordinance
expires. Therefore, we do not think that the preliminary objection raised by
Mr.
Chetty against the competence of the appeals
can be upheld." (1) 151 English Reports 1024.
531 We do not, however, mean to say here that
Parliament or the State Legislature is powerless to bring into existence the
same state of affairs as they existed before an ordinance was passed even
though they may be completed and closed matters under the Ordinance. That can
be achieved by passing an express law operating retrospectively to the said
effect, of course, subject to tile other constitutional limitations.A mere
disapproval by Parliament or the State Legislature of an ordinance cannot,
however, revive closed or completed transactions.
In the petitions before us also the position
is the same as in the decision referred to above. The abolition of the posts
and the declaration that the incumbents of those posts would cease to be
holders of those posts under section 3 of the Ordinance being completed events,
there is no question of their revival or the petitioners continuing to hold
those posts any longer. The above contention has, therefore, to be rejected in
the circumstances of this case.
In view of what has been stated above it is
not necessary to consider the contention of the petitioners that it was not
open to the Government to issue one ordinance after another to keep alive the
effect of the first ordinance as the first ordinance itself brought about the
desired effect by section 3 thereof. Even if the other provisions of the
Ordinance have ceased to be in force, there can be no constitutional difficulty
arising therefrom because it is open to the State Government to create new
posts in exercise of its powers under Article 162 of the Constitution as long
as the field is not occupied by an Act of the Legislature or a rule made under
the proviso to Article 309 of the Constitution.
It is next contended that by abolishing the
posts of part-time village officers and by throwing the petitioners out of the
posts held by them, Article 21 of the Constitution had been violated. It is
hardly necessary to deal with this point elaborately since the petitioners are
not being deprived o f their right to life and liberty by the abolition of the
posts of part-time village officers or by their ceasing to be holders of those
posts.
It is lastly urged that the State Government
may be asked to consider the cases of those petitioners who possess the
prescribed qualifications for appointment as Village Assistants. We are 532
informed that the number of posts of Village Assistants that are going to be
created would be about one-eighth of the number of posts of part-time village
officers which are abolished. It is also difficult in law to issue any
direction in that behalf in the facts and circumstances of this case. We,
however, record that in paragraph 21 of the Counter Affidavit filed by B.V. Janardhan
Reddy, Deputy Secretary to Government, Revenue Department, Government of Andhra
Pradesh it is stated thus:
"In addition, the Government is of the
view that such of those village officers who possess the required
qualifications as prescribed and otherwise found suitable will also be
considered for appointment of Village Assistants subject to the availability of
the posts." We trust that the State Government will give due regard to the
above said statement while making appointments.
Statements contained in affidavits are meant
to be honoured.
In the result these petitions fail and are
hereby dismissed. We make no order as to costs.
N.V.K. Petitions dismissed.
Back
