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Trending: Call for Papers Volume 3 | Issue 3: International Journal of Advanced Legal Research [ISSN: 2582-7340]

CONSTITUTIONALITY OF ORDINANCES: A MOCKERY OF INDIAN CONSTITUTION & ITS EXPLOITATION DONE BY POWER HUNGRY POLITICIANS by Pushkaraj S Ghorpade

ABSTRACT

 The Constitution of India is a detailed document containing 395 Articles and 8 Schedules, providing a federal structure ensuring a division of powers between the Centre and the State. It also contains certain specific provisions for Tribal and Scheduled Areas and having detailed provisions related to various institutions set up under the Constitution of India. Constitution is considered as the grund norm of our nation.

There are many constitutional provisions that are being misused by politicians for their personal use that has hampered the growth of India. We may see many examples that shows the misuse of powers by the executives, for instance- during Bank Nationalization Case an ordinance was passed before assembling of the Parliament, however in the meanwhile the case reached at the Court and consequently it was passed as an Act hence the issue raised went unanswered. The then Prime Minister, Mrs. Indira Gandhi by 38th Amendment Act to the Constitution made sure that “the decision made on the satisfaction of the President”cannot be questioned on any grounds. Later, this was undone by Janata Party Government through the 44th amendment Act.

INTRODUCTION

 Constitution2 is a set of rules governing an organization, whether social or recreational clubs, which may also comprise trade unions or nation state. It defines the objectives and departments or offices, which are established for accomplishment of those objectives. It also defines the powers, rights and duties of the organisation’s members. The set of rules regulates the internal functioning of the organization and it also envisages with certainprovisions dealing with the manner in which the organisation relates to outside bodies.

It embodies a legal framework of our country and establishes high institutions of Government and administration, composition, powers and principal functions. It also lays down the rules which regulate the government and its agenciesdefining the relation between different organs with one another and the people of nation.

CONSTITUTION: A DETAILED DOCUMENT

It is a comprehensive text and in giving details it differs from other written constitution which lay down the fundamentals only. It deals with the composition, functions, powers and limits of the organs of that power, viz, the Legislature, the Executive and the Judiciary and the rules which govern their relations inter se both at the Centre and in the States, and the relation of the citizens with the State. It has left many things to be prescribed, provided and regulated by Parliament by law.

It makes adequate provisions for different kinds of emergency and there is also a procedure for the amendment of the Constitution which makes it reasonably flexible. On 26th November, 1949, the Constitution of India was formulated where its’ preamble describes the basic structure of India that comprises of Sovereign Democratic Republic. It must be noted that the real source and power to grant sanction is the people of India. We the people of India have the power to choose our representatives and they shall work for us.

It reflects the past, embodies the present and is designed to embrace the unfolding future. It is devised to serve as an instrument for the governance of the country, but also to serve as an effective instrument to strengthen and consolidate the nation and to generate forces which will transform India into a homogeneous democratic state based on social and economic justice.

WHAT IS AN ORDINANCE?

The power and authorityare given to the President and the Governor (at Centre and State respectively)for issuance of an ordinance and this power can be exercised when both the Houses of Parliament are not sitting i.e., not in session. It is important to note that any ordinance passed shall have the same force and effect as a Statute as if it is passed by the Parliament itself’.3

The duration of such an ordinance is only for a period of six weeks from the reassembly of Parliament. Article 213 of the Constitution mandates certain requirements to pass an ordinance on subject to the State authority. Further, it must be understood that the executive passing/ issuing the ordinance shall be exercised in case of urgency only that can be used in extraordinary situations.

GOVERNOR’S POWER TO PASS ORDINANCE

 The Governor of a State has the power to pass an ordinance4. As per this provision of the Constitution of India, the powers are given to the Governor of a State to promulgate Ordinance, when the legislature is not holding its’ sessions. Further, the Governor can exercise such a power only if the circumstances exist that renders the passing of ordinance extremelynecessary to take immediate action. For passing of an ordinance, it is must that the Governor is satisfied with the circumstances that needs his immediate action on a particular situation.

There are certain restrictions on the power of the Governor i.e., he cannot promulgate an ordinance if it has certain provisions that would require President’s approval. In that situation, the ordinance shall be reserved for the approval of the President. If the ordinance contains such provision and the Governor surpasses it then passing of such an ordinance would be considered as invalid without the assent of the President.

It is important to note that all the ordinances passed by the Governor shall have the same effect and it would be in force as if it is passed by the Act of Legislature itself’. Once the State Legislature resembles then the ordinance passed by the Governor is laid before the legislature and in case of failure the ordinance would be considered to be invalid from the time of reassembly of State Legislature.

ORDINANCE MAKING POWER OF THE PRESIDENT

The President of India has the power to promulgate ordinances during the recess of Parliament.5 It can be done if the President is satisfied that the circumstances are so urgent and an immediate action is needed then he may promulgate an ordinance. The President acts on the recommendation of cabinet while passing an ordinance and it must be done only on reasonable grounds and this power should not be misused by the executives.

It must be noted that the ordinance promulgated under Article 123 shall have the same effect as passed by the Parliament and it shall be in force for a period of six weeks only from the reassemble of Parliament. It may also expire before the mentioned time duration of resolutions are passed by the House of Parliament for disapproving upon the passing of those resolutions. That the ordinance passed by the President may be withdrawn at any time by him.

PURPOSE OF THE ORDINANCE

India is a federal nation and the relationship between the Centre and the State contains the core element of federalism in India. The safety of citizens of India is ensured through coordination of State and Central Government. Governments function together to deal with various aspects such as environmental protection, family control, socio-economic planning etc. and ensure balance between Centre and the State.

Constitution of India aims at reconciling the national unity by maintaining a balance between the Union and the State. The Seventh Schedule of the Constitution consists of three lists- Union list, State List and Concurrent List. All these lists contain the subject-matter which is to be governed by the Centre and the State respectively.

There may arise a condition where the Parliament has to make laws in the subject matter mentioned under the State List, those conditions are when there is any national emergency, if in case the matter is related to national interest, if the State itself requests the Parliament to do so, when there is any international agreement or if there is President’s Rule in any State.

If we see, in India the law-making power lies with the legislature and it is the significant purpose of the legislature. Laws should be made in such a way that it ensures the protection and safety of their fundamental rights. The executive’s work is to ensure the implementation of the laws that are being passed by the legislative body. There are situations when both the house of parliament is not in session then there is a provision of passing an ordinance so that law making procedure is not hindered due to any reason.

In a case of emergency, the executive body is given the power to deal with the situation and to pass laws when both the house is not in session. To ensure that there is a transparency such a power is given to the executive only and not the judiciary. The judiciary has given power to maintain a check over the powers of the executive in a non-prejudiced and unbiased manner. Articles 123 and 213 of Indian Constitution deals with the powers of promulgation of ordinance given to the President at Centre and Governor at State (respectively). In T Venkata Reddy’s Case6– Power of passing an ordinance was considered equal to the passing of laws by legislation. Such power is enumerated under Section 72 of Government of India Act. Passing of an ordinance is a crucial power which should be used wisely and its’ misuse would harm the nations’ growth.

DETAILED SALIENT FEATURES OF PASSING OF AN ORDINANCE

  • The power has been conferred is conditional in nature and that such power can be exercised only in cases when the legislation is not in session and it shall be passed only after the satisfaction of the 7
  • Another important feature is that an ordinance would be in force and effect similarly, as a law enacted by the legislature but there are two conditions i.e. (i) such an ordinance must be laid before the legislature (ii) the ordinance shall cease to be in operation after six weeks of duration after reassembly of the legislature or, earlier if a resolution has been passed for disapproving the same. Furthermore, there is a provision whereby an ordinance can also be withdrawn.8
  • It is an essential feature according to which an ordinance making power given to the executive organ shall not be misunderstood as an alternative source of law making or the executive cannot act as an independent legislative authority.
  • It must be noted that the power to promulgate ordinances done by the executive body is always subject to legislative checks. The President in center and the Governor in state shall act on the aid and advice of the Council of Ministers and the body of Ministers owes collective responsibility/ liability to the
  • It is an obligatory constitutional provision according to which laying off an Ordinance before the Parliament or State Legislature is a
  • The Legislature has to determine the need of the ordinance; it determines thevalidity of promulgated ordinance. It has to take a call whether the ordinance should to be approved or
  • In case of failure in compliance of the requirement provisioned under the Constitution for laying-off an ordinance before the legislature would lead to a serious constitutional In

D.C. Wadhwa Case9– The process of re-promulgation of ordinances without any justification is a seriousabuse of the process provided under the Constitution. It must be kept in mind that an ordinance should not be passed unless there is urgency.

It is important to note that the satisfaction of the President under Article 123 and the power of the Governor under Article 213 have no immunity from judicial review more specifically after the 44th Amendment Act to the Constitution, whereby Clause 4 in both the articles were deleted. The core test to determine the authenticity of the ordinance is whether the satisfaction is based on some relevant material/ urgency or not.

The court has the power or discretion of judicial review that will determine the question of adequacy of the said ordinance. Court will also scrutinize in the matter whether the satisfaction of the executive constitutes a fraud on constitution or it is being passed on genuine grounds. Judicial review would investigate into the fact whether there was no satisfaction at all.

WHY IS ORDINANCE MAKING POWER NECESSARY?

  1. The idea intended by the constituent assembly was that this power is necessary to tackle the situation that demands immediate action. It also commented that this is extraordinary power should be used as a last
  2. With ordinance making power the Government may address urgent issues that are related to public concern.

ORDINANCE AND RELATED FRAUDS

 As discussed above, the provisions10of Indian Constitution deals with the powers of passing an ordinance in a situation of emergency. There are certain essentials that must be fulfilled while passing of an ordinance that includes the satisfaction of the President related to the existing situation whereby, he realizes that there is a need of an immediate law. However, it shall be questioned on the grounds of urgency and itsrequirement. As per the provisions of the Constitution, the Parliament shall approve the ordinance within a period of six week from date of convening of the Session.

In 2013, The National Food Security Ordinance which was passed and it was interrogated on the basis of urgency. The Government made efforts to wind up five years’ work in one day and immediately another ordinance was passed by the Union Government. It declared that a controversial provision [Section 8(4) of the Representation of People’s Act]as valid in nature which was in contradiction to the ruling of the Supreme Court that declared it as invalid. According to the said provision, the Member of Parliament and Member of Legislative Assembly can continue to hold office, even if they are convicted while they are serving as members. However, this provision was not in the public interest as convicts if holding the public offices then it shall hamper the trust of people in them. There are other instances as well where fraud is played while exercising the power of passing of the ordinance. In a pending case against Lalu Prasad Yadav, who was Bihar’s ex-chief minister, an ordinance was passed immediately before the CBI was about to declare its’ final decision on the said case.

If we analyze both the situations mentioned above then the ordinance passed were not urgent and were passed just to address certain political motives of the then Government, hence we can say that it was exploitation of the power and playing of fraud that raises question on the legitimacy of the power and provision. There have been six hundred thirty-seven promulgation of ordinance since 1952 and the basic requirement that an ordinance should be passed only during an urgent circumstance has been compromised time and again.

If an ordinance is lapsed without being passed from both the house of parliament within a period of six weeks of reassembly then the Government re-promulgates the ordinance when the house is not in session. Such re-promulgation is to serve political ends or for certain ulterior motives.

We can take the example of the Bihar Government where approximately 256 ordinances were promulgated between the years 1967- 1981 although the State Assembly only passed 198 Acts out of 256 during the mentioned time period.

It is totally against the basic structure of Constitution and in violation of the doctrine of separation of powers which provides that all the three bodies should work separately but in consonance of one another. Trial by the executive body to seize the power of the legislature would amount to fraud on the constitution.

In D.C Wadhwa Case11, It was clearly mentioned that the power to make an ordinance of the executive should be solely depend upon the need of urgency or in an emergency situation. If an ordinance is made without following the basic requirement, then it shall be considered as baseless and shall be liable to be questioned in the eyes of law. Hence, the power given to the executive to make an ordinance cannot be misused to serve their ulterior motive or to meet their political ends. In P. VajraveluMudaliar Case12, It was analyzed that passing of an ordinance without any urgency is a clear example of abuse of power given to the executive body. It is a fraud on Constitution as the act of executive that is not expressly mentioned in the Constitution is an absolute fraud and such kind of act should not be tolerated. The purpose of making ordinance should not be misused and it can be challenged in the Court on the grounds of being violative of the Constitution.

When such a gap is visible then the judiciary may step in to fill the pass and to make provisions that are less exploitive in nature.In R C Cooper Case13,The Court mentioned that a challenge could be made in case of an ordinance that is made by a sudden action that is not required on an urgent basis. It must be taken into consideration that an ordinance should be passed based on urgency only. Further, if an ordinance is made based on an immediate action, then it shall be done based on the satisfaction and approval of the President.

As we have mentioned above, as per 38th Amendment Act, an amendment was brought to Article

123 clause (4) where President’s satisfaction to give approval to the ordinance was made unchallengeable. However, later after 44th Amendment Act, this provision was struck off on the grounds of being invalid and irrational.

But still there is a vast scope of improvement in this provision that is required to maintain a check and balance on the unruly powers of the executive body to make ordinances. The judiciary must apply its’ judicial wit to deal with the said concerns, it has not taken a clear standing on the question of challengeablitity of ordinance on the mentioned grounds. These loop-holes cause gaps and lead to misuse of powers by executive body.

CONSTITUTIONALITY AND JUDICIAL TRANSGRESSION

While dealing with the constitutional validity of passing ordinance and judicial transgression, we must take into consideration certain questions such as-

  • Whether it is wrong that the executive has given the similar powers as legislature during urgency?
  • Why ‘Doctrine of Separation of Powers’ is important?

If we see the both the above-mentioned questions are inter-linked, as the doctrine of separation of powers is a basic theory of Constitution that provides that the three organs of the Government must work separately i.e., executive, legislature and judiciary. This Doctrine was coined by Montesquieu, according to him the doctrine is imperative in nature among the organs of the Government and it aims at keep a check over each other’s functions.

The Constitution of India has not provided the limited powers to the Government rather the power is given to people who exercise the same through laws. The doctrine is indispensable in nature, if the powers are misused by either of the organ of the Government then the judiciary may play a major role in determining their power and ask them to restrict themselves within the defined limit.

When we discuss the question of review of the power given to the President to pass the ordinance based on his satisfaction, this has been left unanswered even by the judiciary till date. Judiciary is not transgressing its’ power to make laws rather it is taking initiatives and active steps to preserve the very aim of our Constitution i.e., to protect the democratic set up of India.

Although there are many loopholes in the practical approach of passing ordinance but it would not be feasible to stop the process of re promulgation of the ordinances. As in all the cases, re promulgation of ordinance may not be doubtful and that a number of bills remain pending which need to be cleared in the particular session to avoid its’ pilling up in another session. There may be certain issues that need continuous redressal in such cases it would not be reasonable to put a bar on re promulgation of the ordinance as it would hinder the procedure. The passing of the ordinance is done according to the Article 74(1) of the Constitution of India which provides that laws cannot be passed based on an individual’s decision and the same needs group consensus based on advice of Ministers. In S.R. BommaiCase14,The Court held that it has the power to review the decision of the President over an ordinance and that “President’s Satisfaction” can be challenged if the judiciary feels that there is a mala fide intention or the decision is based on wholly extraneous or irrelevant grounds. Hence, the power of judicial review on the President’s decision protects any draconian law to be passed without judiciary’s check.

In another case of Krishna Kumar Singh15, A series of pronouncements were made by the Supreme Court of India regarding the implications of democratic governance future of India. In this case constitutional questions and concerns were raised which dealt with the power of executives to make law through ordinance. However, the same was analyzed on the need of the provision that provides that the executive can perform this power in case of urgency only and it cannot do it at all times.But if we see then the theoretical need and practical approach of passing of ordinance by the executives is very different as hardly in few cases the need of urgency is followed. This unruly power given to the executive organ of the Government subsides the public interest absolutely. Hence, we can say that the ordinances passed by the executives are not immune from judicial review but not in all cases the judiciary can intervene.

Such significant safeguards have been made by law that ensures prevention of ordinance from being parallel legislation. Further, to ensure transparency Article 74(2) of Constitution of India must be amended that deals with promulgation of ordinance. According to this Article, any guidance given to the President by the Ministers cannot be inquired by the Court. It is important to check that the decision of the cabinet is based focusing the needs of people in mind.

METHOD OF RE-PROMULGATION OF ORDINANCE: APPROPRIATE OR NOT

 The most significant requirement of passing of an ordinance i.e., it should be passed only in case of urgency or in extraordinary exceptional situations. According to Article 123 of the Constitution the ordinance making power of executive organ at Centre Level arises only when the houses of parliament are not holding the sessions and when the President of India is satisfied that there is an immediate need of action to handle the situation. Article 213 provides the similar power to the Governor who can pass an ordinance when the houses of State Legislature are not in session. The Governor may do so acting on the advice of Council of Ministers and he may pass ordinance on matters of state authority.

Under the Constitution of India, the power to pass ordinance is an exceptional power that is given to the executive only to tackle the emergency situation and it cannot be practiced in routine. But if we see then this provision of the Constitution is being highly misused by the executives where the ordinance is not passed in need of urgency but it is done to meet their political ends.

In the year of 2014 an ordinance was re promulgated for about three times without any approval as provisioned under the Statute. The ordinance was passed to overturn certain important benefits that are guaranteed under the Land Acquisition Law that was enacted by the Act of Parliament in the year of 2013. Here the purpose was to surpass the democratic requirements of arguments to overcome several existing shortcomings faced in Rajya Sabha. The Government used alternatively its ordinance-making power; it was the abuse of due process of law which provides certain guidelines of passing of the ordinance.

CASE OF ABUSE OF POWER: ORDINANCE SCRUTINY BY JUDICIARY

 Here we are going to discuss the case of a series of ordinance that are passed by the Bihar Government, with the help of these ordinances the State of Bihar made efforts to take over around 429 Sanskrit Schools where it aimed to transfer the process of service of teachers and employees of the schools within the power of the State. The State passed its’ first ordinance in the year of 1989 and later five more ordinances were passed in this regard, however none of the ordinance was ever placed before the State Legislature for approval. Finally, the State Government failed to enact a Statute confirming the terms of this ordinance.

The teacher and other employees of the school were discharged from the service of the school which lead to termination of the ordinances and the matter against the State Government was brought before the Court. The matter was heard by a seven-judge bench who discussed the two very important questions in this case i.e., whether or not the ordinance that were issued by the State Government were valid in nature according to the Constitution of India? And secondly, whether or not the petitioners had any legal right that survives after termination of the said ordinance?16

To the first question that arose before the Court, it was analyzed that all ordinance is subject to judicial review and an executive is not the sole organ who could pass it at its’ own discretion. Further, reliance was placed on the S.R Bommai Case that we have discussed above, where it was held that the judiciary has power to strike off such ordinances that are not in consonance with the provisions of the Constitution.

In the instant case the executive (Bihar Government) has exercised the power to serve an oblique purpose and hence the judiciary has absolute power to call off such an ordinance. The judiciary can investigate into the situation and may decide whether there is any fraud played or is there any abuse of power done by the executive. An ordinance does not create an enduring effect and it is to be tested on the ground of public interest. The ordinance that is against the public interest cannot be passed and the judiciary has rights to review the same.

In reply to the second question that came up before the Court it was said that yes, the petitioners have rights as their fundamental right of employment was violated. The said ordinance was passed without any urgency or justification and hence petitioner cannot be left without any remedy to suffer.

JUDICIAL REVIEW AND ITS’ SCOPE

 The scope of judicial review is very wide in nature and it has a lot of power while reviewing the ordinance. The power of judicial review promotes transparency in determining the functioning of the executive body. The Court has the crucial power to judicial review and also to verify the actions of the President functioning at the center and the Governor working at State level. It has to be vigilant enough to decidethat the ordinance passed by executive body was necessary or not. If we analyze the aim and objective of Article 123 of the Constitution of India then we can conclude that this Article spells out requirements that there must be an extraordinary measure of promulgating an ordinance. It is very important to see that the ordinance must not be passed to serve judicial needs rather it must be done for serving some public interest or to handle a situation of urgency.

SIGNIFICANCE OF ORDINANCE17

  1. Mechanism to pass an ordinance is devised with an objective to deal with a situation that may arise suddenly and is of The situation arises when Parliament is not in session.
  2. The significance of ordinance is that it may be passed at a time of urgency when there is a need of some urgent check or when some societal issue is to be addressed.

ISSUES ASSOCIATED WITH ORDINANCE

 The power to issue ordinance by the executive goes against the doctrine of separation of power between the three organs of the Government i.e.,legislature, executive, judiciary. This ordinance making power bypass the democratic structure of our nation which provides that there should separation of the three organs. Under this framework the executive is given the similar powers as that of the legislature at the time of urgency to make laws when Parliament is not in session. There is a threat to sovereignty of State Legislature and Parliament, as these are the prime bodies to make laws under the Constitution of India.

SUGGESTED STUDY: RELEVANT CASE LAWS

 Apex Court examined the constitutionality ofBanking Companies (Acquisition of Undertakings) Ordinance, 1969, that required nationalization of fourteen major commercial banks of India. In the R.C. Cooper Case18, the Court analyzed that the President’s final decision cannot be immune from being challenged, if the decision is based on by-passing the legislative intent of making laws for welfare of people.38th Amendment Act, 1975. Through this amendment, a new clause was inserted to Article 123 of the Constitution i.e., clause (4), this provides that President’s decision cannot be challenged on any ground.44th Amendment Act, 1978 Clause (4) inserted to Article 123 was deleted and it provision of judicial review over the decision of the President was provisioned.

The examination of constitutional validity of National Security Ordinance, 1980, was done in A.K. Roy Case19. Preventive detention in certain cases was sought under this and the Court stated that President’s ordinance making power is within the ambit of judicial review. The power of judiciary to review the decision of the executive body is an important power that ensures certain checks and balances upon the unruly power of the executives.

It was analyzed in the DC WadhwaCase20, that ordinance making power of the executives can be exercised in exceptional circumstances only when there is an urgency. The power cannot be used as a regular practice making it an ordinance raj and if it is done this way then the judiciary has all the powers to strike off the re promulgation of ordinances.

It was analyzed that an ordinance making power of executive organ is not a parallel source of law making. This observation was made in Krishna Kumar Singh Case21, where re promulgation of an ordinance was challenged based on any fraud and it was held that ordinance making power has no immunity from judicial scrutiny.

CONCLUSION

As we have discussed above that an ordinance is an executive action that is an outcome of an urgent situation. This project highlights and traces the frauds that are done by executive to serve their political ends and for which they even subside constitutional provisions for personal gains. The provision of passing of an ordinance is not a very good provision as there are several loopholes that are being misused by executive’s time and again. The ordinance passing power should be based on certain checks and balance that should be specifically mentioned under the relevant provision of the Constitution.

The whole process of passing and promulgation of ordinance is questionable and it hints that the executive has unruly power over it. Hence, the judiciary has to exercise its’ power of judicial review. The power of judicial review gives the power to judiciary to demarcate a line dividing their powers and also restricting the executives in exceeding it. The need of the hour is to reform the ordinance making power of the executive as this is the extreme power that can turn a State into dictatorship. The object behind reform should be to maintain the democratic set up of our nation by putting checks and balances on ordinance making powers of the executives.

1 3rd year, A.LL.B. (Hons.), NMIMS SOL,NAVI MUMBAI

2 Indian Constitution

3 INDIA art. 123.

6 T Venkata Reddy State of A.P. AIR 1984 AP 724.

7 INDIA art 133.

8 INDIA art.123 and 213.

9.D.C. Wadhwa and Ors.v. State of Bihar and Ors.(1987) 1 SCC 378.

10 INDIA art.123 and 213.

11 C. Wadhwa and Ors.v. State of Bihar and Ors.(1987) 1 SCC 378.

12 VajraveluMudaliar v. Special Deputy Collector [1965]1SCR614.

13 R C Cooper v Union of India, 1970 AIR SC

14 R. Bommai v Union of India, AIR 1994 SC 1918.

15 Krishna Kumar Singh v. State of Bihar, 2017 (2) SCJ

16 Suhrith Parthasarathy, Rolling back ordinance raj, https://www.thehindu.com/opinion/lead/Rolling-back- Ordinance-Raj/, Last visited: 20th 2020.

17 Vigeshsabari,https://tlp.iasbaba.com/2018/11/day-6-q-1-critically-examine-the-utility-of-ordinance-making- powers-in-a-parliamentary-democracy/ Last visited: 21st 2020.

18 C. Cooper v. Union of India, AIR 1970 SC 564.

19 K. Roy v. Union of India, (1982) 1 SCC 271.

20 C. Wadhwa and Ors.v. State of Bihar and Ors. (1987) 1 SCC 378.

21 Krishna Kumar Singh v. State of Bihar, 2017 (2) SCJ