The Power Grab That Went Too Far
In 2017, India's Supreme Court issued a judgment that cut through years of government overreach in Bihar. A seven-judge bench—the highest constitutional authority—ruled that the Governor had violated the Constitution repeatedly by issuing ordinances (emergency orders) without following the law.
This wasn't abstract constitutional theory. Real people's livelihoods hung in the balance. Teachers in 429 Sanskrit schools across Bihar had their employment status thrown into legal limbo for years because officials ignored rules designed to protect citizens from arbitrary government power.
What Is an Ordinance and Why Does It Matter?
Think of an ordinance as an emergency law. When a state legislature isn't in session, India's Constitution lets the Governor issue an ordinance to handle urgent situations that can't wait months for lawmakers to reconvene. It's supposed to be temporary—like a fire extinguisher, not a replacement for the sprinkler system.
But there's a catch. The Constitution (specifically Article 213) sets strict conditions. First, the legislature must actually be absent. Second, the Governor must genuinely believe there's an emergency. Third—and this is where Bihar's Governor failed—the ordinance must be placed before the legislature as soon as it reconvenes.
The Court made clear: the word "shall" in Article 213(2) is not polite suggestion. It's a legal command.
What Happened in Bihar
Bihar's Governor issued an ordinance to take over management of 429 Sanskrit schools from private operators. Teachers and employees were told their services would transfer to the state government. Fair enough—but then the Governor did something constitutionally toxic.
Instead of placing the ordinance before the legislature, the Governor simply issued it again. And again. A succession of ordinances, each one dead on arrival legally, but each one maintaining the fiction that these teachers were government employees.
Years passed. Teachers received salaries based on these invalid ordinances. The uncertainty festered. No one knew if they had real jobs or legal phantom status.
How the Court Demolished the Governor's Justification
The seven-judge bench (led by Chief Justice T.S. Thakur, alongside Justice Madan B. Lokur, S.A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, D.Y. Chandrachud, and L. Nageswara Rao) was unsparing in its language.
Every ordinance issued in Bihar constituted "a fraud on constitutional power." Not a technical mistake. Fraud.
Why? Because the Constitution requires that ordinances be "laid" before the legislature within a specified timeframe. The Governor never did this. Re-promulgating the same ordinance over and over was not a workaround—it was defiance of a binding Supreme Court judgment in an earlier case (D.C. Wadhwa) that had already clarified these rules.
The Court held that the requirement to lay an ordinance before the legislature is not merely directory (optional) but mandatory (binding). There are no exceptions. Not convenience. Not political pressure. Not bureaucratic inertia.
Why This Ruling Matters for Ordinary Indians
This case establishes that government officials cannot simply bypass constitutional rules, no matter how powerful they are. If a Governor could re-issue ordinances indefinitely without legislative scrutiny, the Constitution would become meaningless.
Legislatures exist to debate and approve laws—or reject them. When a Governor bypasses this check, citizens lose their voice. The Court recognized this: "The requirement of laying an Ordinance before the legislature is a constitutional necessity; the underlying object and rationale being to enable the legislature to determine (i) the need for and expediency of an ordinance; (ii) whether a law should be enacted; or (iii) whether the Ordinance should be disapproved."
Translation: Your elected representatives must have a say. When officials ignore this, they've committed a constitutional wrong.
The Tricky Part: What About the Salaries Already Paid?
Here the Court showed practical wisdom alongside legal principle. It ruled that while the ordinances were void (legally dead), the salaries paid to teachers during the invalid ordinances' tenure would not be recovered.
You can't punish workers for the government's constitutional violations. They relied on the salary in good faith. The state cannot take it back.
But the ordinances conferred no legal status. The teachers had no permanent right to government employment based on these void orders. The higher court had already issued directions on salaries; those would stand.
The Bigger Constitutional Picture
The Court went deeper than just Bihar. It clarified how ordinance power works across all states under Article 213.
A Governor forming the satisfaction that circumstances require "immediate action" is not the Governor deciding what's convenient. The Constitution distinguishes between necessity and desirability. Necessity means emergency. Desirability means it would be nice to have.
Moreover, a Governor is not an independent legislator. Under Article 163, the Governor acts "on the aid and advice of the Council of Ministers." The Cabinet is accountable to elected legislators. When the Governor re-promulgates ordinances, the entire executive-legislative balance fractures.
How Long Can an Ordinance Actually Last?
The Constitution gives ordinances a defined lifespan. An ordinance ceases to operate after six weeks once the legislature reassembles, unless the legislature approves a law with the same provisions. Or it can be disapproved by a resolution. Or the Governor can withdraw it.
An ordinance cannot become law by approval resolution alone. It must be replaced by a formal legislative enactment. This keeps emergency powers from becoming permanent.
Bihar's Governor tried to make emergency permanent by re-issuing. The Court shut that door forever.
Three Situations Requiring Presidential Approval
The judgment also clarified when a Governor cannot issue an ordinance without instructions from the President. Three scenarios exist: when the equivalent bill would need Presidential sanction to be introduced in the legislature; when the Governor would need to reserve a bill for Presidential consideration; or when a state law would require Presidential assent.
In those cases, the Governor cannot unilaterally issue an ordinance. Constitutional architecture prevents executive overreach by making certain laws subject to central scrutiny.
The Judgment's Real Impact
This is not dead constitutional theory. Every state government must now contend with this ruling. Ordinances cannot be weapons of indefinite control. Legislatures matter. Procedures matter. Rules matter.
For the 429 Sanskrit school teachers in Bihar, vindication came late. But the principle is now carved in stone: no official, no matter how powerful, can treat the Constitution as optional.
When a state government—or any government—issues emergency orders and then refuses to let the legislature debate them, that's not governance. That's power unchecked. The Supreme Court reminded India's political system that democracy requires more than winning elections. It requires following the rules, even when the rules are inconvenient.