Outlawing Ordinance Raj in Krishna Kumar v State of Bihar: A Saga from Permissibility to Constitutional Fraud in India ....

Authors: Anurag Ojha, Sumit Sonkar


In Krishna Kumar v State of Bihar, the Supreme Court of India pronounced that an Ordinance enacted during a legislative recess must be mandatorily laid before the legislature when it reconvenes. However, the textual reading of the relevant constitutional provisions as contained in Article 123 and 213 of the Constitution of India does not prohibit the re-promulgation of Ordinances once the same is either rejected or cease to have an effect. The Supreme Court of India in DC Wadhwa v State of Bihar partially depreciated such practice of consistent (re) promulgation of Ordinances without placing them before the legislature, by declaring them as a fraud on the Constitution. However, the issue of whether such re-promulgation is a fraud on the Constitution and thus invalid, was not authoritatively answered. The present case note discusses the propriety and the constitutional sustainability of re-promulgation of Ordinances in the exercise of legislative powers conferred upon the nominal executive head of State under Article 123 to the President of India and Article 213 to the Governor of State in the light of Krishna Kumar v State of Bihar decision.

Keywords: Constitutional Fraud – D.C. Wadhwa v State of Bihar – Executive – Krishna Kumar v State of Bihar, – Legislature – Ordinance – Parliament – Re-promulgation – Supreme Court of India