Krishna Kumar Singh v. State of Bihar: the seven-judge Bench that made re-promulgation of ordinances a fraud on the Constitution

On 2 January 2017, a seven-judge Constitution Bench of the Supreme Court answered a reference that had travelled through the Court for more than two decades — from a two-judge Bench in 1998, to a three-judge Bench in 1999, to a five-judge Bench, and finally to seven judges by an order of 23 November 2004. Krishna Kumar Singh v. State of Bihar, reported at (2017) 3 SCC 1, is now the modern, authoritative settlement of the ordinance-making power under Articles 123 and 213 of the Constitution. Justice D.Y. Chandrachud wrote the principal judgment, joined by Justices S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao. Justice Madan B. Lokur dissented on the central question of whether laying an ordinance before the legislature is mandatory. Chief Justice T.S. Thakur wrote separately, declining to resolve that question on the facts before the Bench.

The Sanskrit schools and the shadow of D.C. Wadhwa

The case begins, as the judgment itself records, with an economics researcher who "stumbled upon a startling practice" while studying land tenures in Bihar: the Governor of Bihar had promulgated and re-promulgated 256 ordinances between 1967 and 1981, some kept alive without legislative sanction for as long as fourteen years. That research became a book — Re-promulgation of Ordinances: A Fraud on the Constitution of India — and a writ petition, and produced the Constitution Bench's landmark 1986 ruling in D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, which condemned Bihar's practice of "Ordinance-raj" as a disregard of constitutional limitations.

Barely three years after Wadhwa was decided, the Governor of Bihar promulgated an ordinance taking over the administration of 429 non-government Sanskrit schools in the State, transferring the services of their teachers to the State Government. A succession of further ordinances followed, extending the same arrangement; none was ever laid before the State Legislature, as Article 213(2) requires, and the last of them was simply allowed to lapse. Teachers who had drawn government-scale salaries under the ordinances then sued to recover arrears once the chain ended — squarely raising the question the Bench had been convened to answer: what survives, in law, when an ordinance that was never placed before the legislature ceases to operate?

What the majority held

Justice Chandrachud's judgment resolves the reference across a numbered set of conclusions. Three are central.

Laying before the legislature is mandatory. The words "but every such Ordinance shall be laid before" Parliament or the State Legislature, in Articles 123(2) and 213(2), impose a positive constitutional obligation, not a directory formality. The requirement exists so that the legislature — the primary law-making body — can determine the need for, validity of and expediency of the ordinance; decide whether to approve or disapprove it; and decide whether to enact its provisions into permanent law. Failure to comply, the judgment holds, "is a serious constitutional infraction and abuse of the constitutional process."

Re-promulgation without laying is a fraud on the Constitution.

The Bench treated the ordinance power under Articles 123 and 213 as an exceptional, conditional legislative competence — exercisable only when the legislature is not in session — and subject throughout to legislative control, since the President and the Governor act on the aid and advice of a Council of Ministers that is collectively responsible to the legislature. Repeated re-promulgation, without ever submitting the ordinance to that legislative check, defeats the limited constitutional purpose the power was designed to serve.

The President's and Governor's satisfaction is reviewable.

Following the Forty-fourth Amendment's removal of the finality clauses that had once shielded the President's and Governor's "satisfaction" from challenge, courts may examine whether that satisfaction rests on relevant material — though the scope of that review remains narrow and does not extend to reassessing the underlying political judgment.

Enduring rights are governed by a public-interest test, not an automatic rule. On what happens to rights, obligations and liabilities created while a since-lapsed ordinance was in force, the majority declined to lay down a blanket rule in either direction. The question, the judgment holds, must be decided as a matter of construction, applying a test of public interest and constitutional necessity — including whether the consequences that occurred under the ordinance have become irreversible in character. Courts retain the power to mould relief accordingly in an appropriate case.

The dissent: Lokur, J.

Justice Lokur, in a separate judgment, declined to join the majority on the mandatory-laying question.

In his view, the placing requirement under Article 213(2) is directory rather than mandatory, and non-compliance does not, without more, strip an ordinance of the force of enacted law. He agreed with the majority, however, that an ordinance cannot on its own create an enduring or irreversible right in a citizen merely because it has ceased to operate — though he reached that conclusion by a different route, and considered that the Court's earlier rulings in State of Orissa v. Bhupendra Kumar Bose and T. Venkata Reddy v. State of Andhra Pradesh, which had suggested otherwise, needed to be overruled. On re-promulgation itself, Justice Lokur took the position that repeated re-promulgation is not per se a fraud on the Constitution, since genuine exigencies may sometimes require it — provided the Governor exercises the power as a considered judgment rather than a mechanical formality.

Thakur, CJI: the question left open

Chief Justice Thakur, delivering the third opinion, agreed that the writ petitioners before the Bench could not succeed on the facts, but chose not to resolve the mandatory-versus-directory question that divided Justices Chandrachud and Lokur — leaving "the question of interpretation of Articles 123(2) and 213(2), in so far as the obligation of the Government to place the ordinance before the Parliament/legislature," open. With that qualification, he concurred in disposing of the appeals in terms of Justice Chandrachud's judgment, which carried the reference for the Bench as a whole.

The doctrinal arc

Krishna Kumar Singh sits directly downstream of D.C. Wadhwa v. State of Bihar (1986), extending Wadhwa's condemnation of "Ordinance-raj" from a single State's extreme practice into a general constitutional rule binding both the Union and every State. It also belongs to the broader line of cases testing whether executive satisfaction under the Constitution's emergency and reserve powers is reviewable — a question the Court answered for Article 356 in S.R. Bommai v. Union of India (1994), for the Governor's discretion to summon or prorogue an Assembly in Nabam Rebia v. Deputy Speaker (2016), and, most recently, for the Governor's duty to act on bills within a reasonable time in State of Tamil Nadu v. Governor of Tamil Nadu (2025). The common thread is that constitutional offices exercising conditional or emergency powers remain answerable — to the legislature politically, and to the courts on the limited question of whether the power was validly invoked.

What practitioners take from it today

For constitutional litigators, the judgment supplies the operative test whenever a beneficiary seeks to enforce rights that arose under an ordinance the government never placed before the legislature: ask whether the consequences are irreversible, whether reversing them would be impractical, and whether public interest and constitutional necessity favour preservation. For legislative-process challenges, the "fraud on the Constitution" language remains the sharpest available characterisation of governments that treat the ordinance power as a substitute for, rather than a bridge to, ordinary lawmaking. And because Justice Lokur's dissent and Chief Justice Thakur's separate opinion both declined to fully embrace the mandatory-laying holding, practitioners should note that the binding force of that proposition rests on a majority of five out of seven — real, but not unanimous, and one a future Bench could in principle revisit.

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Sources

1. Supreme Court of India — judgment in Krishna Kumar Singh & Anr. v. State of Bihar & Ors., Civil Appeal No. 5875 of 1994, decided 2 January 2017 (hosted via Bar & Bench): https://images.assettype.com/barandbench/import/2017/01/krishna-kumar-singh-v.-state-of-bihar.pdf
2. LiveLaw — "Placing Ordinance Before Legislature Mandatory; Re-promulgation Fraud On Constitution: SC 7 Judge Bench": https://www.livelaw.in/placing-ordinance-legislature-mandatory-re-promulgation-fraud-constitution-sc-7-judge-bench
3. Supreme Court Observer — case background, Krishna Kumar Singh v. State of Bihar: https://www.scobserver.in/cases/krishna-kumar-singh-bihar-re-promulgation-of-ordinances-case-background/
4. Supreme Court Observer — "Judgment of the Supreme Court in Plain English": https://www.scobserver.in/reports/krishna-kumar-singh-bihar-re-promulgation-of-ordinances-judgment-of-the-supreme-court-in-plain-english/