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Ordinance on Ayodhya: Experts say propriety demands govt should wait for SC verdict


Press Trust of India New Delhi
The demand by some saffron groups that the government should come out with an ordinance for constructing a Ram Temple at Ayodhya has not got support from legal experts who were of the view that propriety demands it should wait for the Supreme Court's verdict.
According to senior jurists Rakesh Dwivedi and Ajit Kumar Sinha, there is no bar on the Centre to take the ordinance route but it should wait for the apex court's decision.
But senior advocate Vikas Singh straightaway said no ordinance can be brought when the matter is pending before the top court and added that it was not about any provision but its propriety.
"It's doctrine of separation of powers. Once it is before judiciary, it can't be done by any government," Singh, who is also the president of the Supreme Court Bar Association, said.
The debate arose immediately after yesterday's Supreme Court hearing in the Ayodhya land dispute case where the matter has been fixed for hearing in first week of January.
There was a chorus of demands from within the BJP and various Sangh Parivar groups that the Centre bring an ordinance or legislation in the Winter session of Parliament for early construction of Ram temple at Ayodhya ahead of 2019 Lok Sabha polls without waiting for the apex court verdict.
Dwivedi and Sinha also said even if the ordinance is brought in, it can be challenged in the court of law.
Dwivedi said, "Now an ordinance can be questioned straightaway because of a 7-judges judgement. I don't think BJP and the central government are going to do that. They will just keep the issue alive till election. It seems to me that nothing is going to happen.
"For an electoral purpose you may issue it, somebody will challenge it, Congress lawyers will question it," he said, adding the BJP will then get an opportunity to use the issue for the elections.
The senior advocate was referring to the judgement delivered in January 2017 by which it was ruled that an ordinance has to be promulgated in the case of extreme emergency and has to be placed before the legislature immediately after the House comes into session.
Dwivedi said the judgement of the Allahabad High Court pertained to which party owned the land so they decided to divide it and now the apex court will also look into it.
"Now, the question will be whether the government of India is willing to acquire the land from whoever is owning the land and pay a compensation to them. And then, use it for public purpose. That power is there but the question is ultimately there is an element of religion which is getting involved.
"So, the problem arises can central government indulge in acquisition to favour one religion against the other religion. Therefore, it is proper to wait for the judgement of the Supreme Court and then work it out whichever way is the best," Dwivedi added.
Sinha also said it was the prerogative of the government or Parliament to bring an ordinance and there was no such constitutional provision or bar on it.
However, it would not be fair and proper to bring the ordinance as the matter is pending before the top court and they should wait, he said.
"There is no bar as such since the Supreme Court will only decide legality of entitlement of the suit.
"In my view, propriety demands that they should wait. The Supreme Court has fixed the matter in January, so they can wait till then. Because the ordinance will have a bearing on the pending matter," Sinha said.
As many as 14 appeals have been filed against the high court judgement, delivered in four civil suits, that the 2.77 acre land be partitioned equally among three parties -- the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.
Amid the clamour for an ordinance or alternatively bringing in a legislation in the Winter session of Parliament, the Congress called for restraint and wait for the Supreme Court verdict without linking the issue to "votebank politics". The winter session is likely begin in the first half of December.

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First Published: Oct 30 2018 | 7:40 PM IST

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