The argument of ‘irrevocability’
Article 357(1)(a) stipulates that it shall be competent for Parliament to confer on the President the ‘power to make laws’ as well as the power to delegate this law-making power to any other authority.
Before the Constitution (Forty-second Amendment) Act 1976, the text of Article 357(2) stated that any law made by Parliament or the authority authorised by it which the authority would not have had the competence to enact but for the Proclamation under Article 356, shall to the extent of incompetency cease to have effect within one year from the Proclamation ceasing to exist, unless the law is repealed, modified or re-enacted by the Legislative Assembly of that State before that period.
The provision also expressly saved the things done before the expiry of one year. However, after the Constitution (Forty-second Amendment) Act 1976, Article 357(2) now stipulates that any such law made by Parliament or by the authority delegated with the power shall continue to be in force even after the Proclamation has ceased to operate until such law is repealed, altered or amended. While before the amendment, the law to the extent of incompetency would automatically cease to exist after a buffer period, an express repeal by the competent legislature is required for the law to cease to exist after the amendment.
The impact of the amendment to Article 357(2) is two-fold:
One, Article 357(2) is an enabling provision where in spite of incompetence, the law is valid until it is altered or repealed by the State legislature. Before the amendment, an affirmative act from the State legislature after discussion was necessary for the law to continue to be in force. After the amendment, an affirmative act of approval is not required from the State legislature but it is open to it to repeal or modify the law.
Two, Article 357(2) before the amendment contained a provision saving the things done before the expiration of the said period. This provision was necessary because the law would cease to operate after the buffer period and hence, a doubt could well arise about actions taken during the operation of the law.
The savings clause has been deleted after the amendment since a law enacted during the term of the Proclamation would continue in force even after the Proclamation has ceased to exist until it is expressly repealed. The repealing statute would in such a case make provisions for actions taken during the subsistence of the legislation. Article 367(1) also applies the provisions of the General Clauses Act, 1897 to the interpretation of the Constitution.
Principle of “irrevocability”
A reading of Article 357(2) indicates that the principle of “irrevocability” cannot be derived from the provision for the following reasons:
a. Article 356 by vesting the President with the power to assume the functions of the State executive and declare that Parliament shall exercise the power of the State legislature enables the President and Parliament to exercise functions which it is otherwise incompetent to. Article 357 states that laws which Parliament is otherwise incompetent to enact shall be valid even after the Proclamation ceases to be in force until the State legislature repeals or modifies such laws.
Thus, until such a law is by an affirmative action either repealed or modified, such law will be valid. The provision only confers the power to the restored State legislature to restore the legislative position as it existed before the Proclamation by repealing the enacted statute. The provision does not place any limitations on the exercise of power under Article 356;
b. Article 357 only deals with the validity of laws after the Proclamation ceases to exist and not the validity of executive actions taken by the Union Government. Even if for the sake of argument, it is accepted that the principle of irrevocability runs through Article 357(2), this principle cannot be imported to limit the scope of the exercise of executive power when the Proclamation is in force; and
c. Article 357(2) encapsulates the working of the Indian federal model by providing that though the division of powers between the Union and the State legislatures which is a core component of the federal structure is capable of being altered during the subsistence of the proclamation under Article 356, the federating units would have the power to reverse or modify the changes which were brought by the Union during the subsistence of the Proclamation. In that sense, Article 357(2) enables the restoration of federal principles.
Krishna Kumar Singh v. State of Bihar
In Krishna Kumar Singh v. State of Bihar[1], one of the issues before the Court was whether the legal effects or consequences of an Ordinance stand obliterated upon the lapsing of an Ordinance or upon the Legislative Assembly passing a resolution disapproving the Ordinance.
Constitution Benches of the Court in Bhupendra Kumar Bose v. State of Orissa[2] and T Venkata Reddy v. State of Andhra Pradesh[3] had held that the rights created by an Ordinance have an enduring effect even after the Ordinance ceases to exist. The premise of the decision was that the effects of an Ordinance must be assessed on the basis of the same yardstick that applies to temporary enactments.
Justice DY Chandrachud writing for the majority held that there is a fundamental fallacy in equating an Ordinance with a temporary enactment because an Ordinance, though deemed to be a law in view of the deeming fiction in Article 213 comes into force through an executive action. This Court held that when an Ordinance ceases to exist, the rights and other consequences created by the Ordinance also cease to exist for three reasons:
First, Article 213 unlike other provisions of the Constitution (such as Articles 358(1) and 359(1)) does not have a savings clause which saves the actions or things done when the Ordinance was in force;
Second, the theory of enduring rights attributes a degree of permanence to the power to promulgate Ordinances which derogates from the principle of parliamentary supremacy; and
Third, in SR Bommai, the Court held that irrevocable actions cannot be taken until the Proclamation issued under Article 356 is approved by Parliament. This principle was held to be applicable to Ordinance making power as well.
Relief where restoration of status quo ante was not possible?
A subsequent issue which arose before the Court in Krishna Kumar Singh (supra) was on the question of relief. That is, what relief could the Court grant where restoration of status quo ante was not possible? The Court held that while deciding on the relief, the Court must decide if “undoing what had been done under the Ordinance would manifestly be contrary to public interest”.
The Court further observed that impracticality cannot be raised to an independent status but it can be one of the aspects which the Court must consider while assessing public interest. At a preliminary level, the issue in Krishna Kumar Singh (supra) was whether the consequence of an Ordinance can subsist even after the Ordinance ceases to exist or whether the rights created by an Ordinance cease to exist along with the Ordinance.
An Ordinance ceases to exist on the expiry of six weeks from the reassembly of the Legislature or when before the said period, a resolution disapproving the Ordinance is passed. The provisions dealing with Ordinance making power (Article 123 and 213) do not contain a clause saving actions taken under an Ordinance after it ceases to exist. As discussed above, Article 356 is placed differently by virtue whereby laws enacted by Parliament in exercise of the State legislature’s power do not cease to exist merely on the expiry of the Proclamation, and thus there was no necessity for a savings clause.
Finally, the Court by following the line of approach taken in SR Bommai interpreted the phrase ‘cease to exist’ in Article 213 broadly because the narrow interpretation would lead to the abrogation of the principle of parliamentary supremacy where the effects of executive action would have a permanent effect without any parliamentary oversight. To recall, in SR Bommai, the Court held that “irreversible” changes cannot be made before the Proclamation under Article 356 is approved by both Houses of Parliament under Article 356(3).
Otherwise, the purpose of the provision which is to place a Parliamentary check on the exercise of power by the executive would become nugatory. In this context, Justice Jeevan Reddy made the following observations:
“290. […] The expression “approval” has an intrinsic meaning which cannot be ignored. Disapproval or non-approval means that the Houses of Parliament are saying that the President’s action was not justified or warranted and that it shall no longer continue. In such a case, the Proclamation lapses, i.e., ceases to be in operation at the end of two months — the necessary consequence of which is the status quo ante revives.
To say that notwithstanding the disapproval or non-approval, the status quo ante does not revive is to rob the concept of approval of its content and meaning. Such a view renders the check provided by clause (3) ineffective and of no significance whatsoever. The Executive would be telling Parliament:
“I have dismissed the Government. Now, whether you approve or disapprove is of no consequence because the Government in no event can be revived. The deed is done. You better approve it because you have practically no choice.”
We do not think that such a course is consistent with the principle of parliamentary supremacy and parliamentary control over the Executive, the basic premise of parliamentary supremacy. It would indeed mean supremacy of the Executive over Parliament.”
The Court in SR Bommai distinguished between the exercise of power before a Proclamation is approved by Parliament and after the approval. The approval of the Proclamation by Parliament grants legislative legitimacy to the executive action under Article 356. The argument of democratic deficit fails after the Proclamation is approved by Parliament.
For the above reasons, the rejection of the enduring rights theory in Krishna Kumar Singh (supra) cannot be transposed to the interpretation on the limits on the exercise of power under Article 356. The interpretation of neither the text of Articles 356 and 357 nor the decision of this Court in Krishna Kumar Singh (supra) lead to the inference that power under Article 356 cannot be exercised to create ‘irreversible’ consequences.
Any other interpretation would also lead to the Court testing the validity of outcomes and not the exercise of power. Challenging the exercise of power on the ground of irreversibility would open the way for challenging every day administrative actions against which we have cautioned above.
Reference
Re: article 370 of the constitution, 2023
[1] (2017) 3 SCC 1
[2] AIR 1962 SC 945
[3] (1985) 3 SCC 198