The unratified ordinance and the 7-judge Supreme Court Bench no one is talking about

The “Hindutva” hearings may have received a fair share of print space in recent times, but it is not the only seven-judge hearing in the Supreme Court of India..Led by Chief Justice of India TS Thakur, a bench of Madan B Lokur, SA Bobde, AK Goel, UU Lalit, DY Chandrachud, and L Nageswara Rao has reserved its judgment on the legal consequences of an ordinance that has lapsed. The seven-judge bench, which reserved judgment yesterday, has been hearing arguments since November 8 this year..The judgment, when delivered, can be a particularly important one, especially given the “reticence” with which Indian courts have treated ordinances of the past..Promulgated under Article 123 of the Constitution (and Article 213 for the States), Ordinances are laws passed when the Parliament (or state legislature) is not in session. Originally intended for emergency situations, ordinances have to be ratified within a period of six months. Failure to do so will result in the ordinance lapsing..But what happens to the rights and duties that are created by the ordinance? More specifically, what happens to these rights and duties once the ordinance lapses?.It is a question that the Supreme Court shall seek to answer. Not for the first time. .In 1989, the State of Bihar took over Sanskrit schools through the Bihar Non-Government Sanskrit Schools (Taking Over of Management and Control) Ordinance. The ordinance was re-promulgated multiple times, eventually lapsing in 1992. Under this ordinance, teachers in these schools were to be absorbed into Government service. Their pay, allowances and other service benefits would be determined by the state at the time of the absorption. .Following the lapse, the teachers approached the Patna High Court, contending that they had become – and continued to remain – government servants, with all attendant benefits..The High Court took the view that the re-promulgation of the ordinances by the state Government was illegal, and the petitioners would be entitled to get the salary which they were getting prior to the promulgation of the ordinance, in addition to the salary as Government servants during the period when the Ordinance was in force. The Bihar government evidently was not about to let the matter slide, with the matter reaching the Supreme Court..In 1998, the Division Bench of Justice D C Wadhwa and Sujata Manohar J had divergent views; the matter would have to be heard by a larger bench. Six years later, on November 23, 2004, a five-judge bench led by the then CJI RC Lahoti decided that the matter would have to be examined by a larger bench. .Which is how the current seven-judge bench has come into play. Before the bench lie a number of questions, of which two, notes this post on Indian Constitutional Law and Philosophy, are particularly important..“(a) What is the scope of judicial review over the political executive’s ordinance-making power?.(b) Do the acts undertaken under an ordinance that fails to be ratified survive even after the ordinance ceases to exist?”.The tally of bigwigs involved in this case is impressive, with Senior Advocates Salman Khurshid, V Giri and Amarendra Sharan appearing on behalf of the appellant-petitioners, and Rakesh Dwivedi for the State of Bihar..Dwivedi had argued that it was not possible to segregate the first ordinance from the others, and hold the first one valid, and the remaining invalid, as Justice Wadhwa had held way back in 1998. He had also argued that there would be no enduring rights once the ordinance lapses..Building on the arguments of what Senior Advocate, and former Law Minister, Shanti Bhushan had argued in the past, current arguments have centred around the judgment in SR Bommai and Ors., v. Union of India and Ors. The majority view in Bommai’s was that “when a proclamation of the President’s Rule ceases to be in operation, the necessary consequence is that the status quo ante revives”. .Of course, Bommai dealt with the President’s power under Article 356, while the current case deals with the exercise of powers under Article 213. With so much at stake, the judgment has all the makings of a landmark decision.