SC notice on plea against land ordinance's re-promulgation

The Supreme Court Monday issued notice to the central government on a petition challenging the constitutional validity of the manner in which land ordinance was repromulgated after being passed by the Lok Sabha.

A bench of Justice J.S. Khehar and Justice S.A. Bobde issued notice, returnable in four weeks, on the plea by a group of farmers' organisations.

"Let the government file response. Maybe we may not agree with you after we hear the government," the court said as senior counsel Indira Jaising urged the government be directed to place before the court the record that justified the urgency to re-promulgate the ordinance.

As the court initially gave the government six weeks to respond to the petition, Jaising, pressing for an early date, said the ordinance itself has the life of six weeks.

At this, Justice Khehar said: "We may tell you after six weeks that the ordinance has become infructuous. I am telling you today that if enactment comes, it will become infructuous."

Jaising told the court that it was perhaps for the first time that the Rajya Sabha, which was in budget session, was prorogued so that the ordinance could be re-promulgated.

A group of farmers' organisations on April 9 moved the apex court seeking the quashing of the re-promulgated land ordinance on the grounds of its being ultra vires of the Constitution and restraining the government from enforcing it.

The Bharatiya Kishan Union, Delhi Grameen Samaj, Gram Sewa Samiti and Chogama Vikas Avam have sought a declaration that "the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015, is unconstitutional, null and void and ultra vires Articles 14 and 123 of the Constitution and hence void ab initio".

They also sought a direction restraining the government from "acting upon" the ordinance and have contended that the government's action in re-promulgating the ordinance is mala fide, thus open to challenge.

The discretionary power of the president to promulgate ordinances has to be "exercised judiciously and within the strict paradigm of the circumstances, circumscribing the exercise of such discretion under Article 123".

Noting the Constitution vests lawmaking functions in parliament, the petitioners contended that "if the executive was permitted to continue the provisions of an ordinance by issuing successive ordinances without submitting the same to the voice of parliament, it is nothing but usurpation by the executive of the lawmaking powers of the legislature".

"Merely because it does not have numbers in the Rajya Sabha, the executive cannot be permitted to continue the law making exercise by way of an ordinance" and "the life and liberty of citizens cannot be regulated by Ordinances..."

The petitioners contended that the government "deliberately" did not move the bill for discussion in the Rajya Sabha after its passage in the Lok Sabha, due to lack of its numbers in the upper house, political will or consensus.

"The ordinance-making power under Article 123 was never meant to be a substitute to overcome lack of numbers of the executive in one house," the petitioners said, arguing the government was "evolving a dangerous precedent for the exercise of Article 123 which is not at all envisaged by the Constitution".