In a rare move, the Supreme Court on Monday agreed on the basis of a PIL to examine the constitutionality of President's power to re-promulgate an ordinance on the ground that it subverted legislative process.
The Supreme Court issued notice to Centre on the question of validity of the re-promulgation of the land acquisition ordinance by the President on April 3, 2015.
A bench led by Justice J.S. Khehar also sought the government's stand on a plea to "hand over" all records leading to the re-promulgation.
The order was passed on a petition filed by several farmers' bodies terming the re-promulgation and the manner the government got it done by proroguing the Rajya Sabha on March 28 as a “textbook example of blatant abuse” of the President's power under Article 123 of the Constitution.
Issuing notice, Justice Khehar however told senior advocate Indira Jaising, for the farmers, that there is a possibility that the petition may become infructuous "in a little while".
The bench was hinting at the probability that the Rajya Sabha, once it reconvenes on April 23, may after all pass the Land Bill without much ado.
An ordinance has life of six months if promulgated when the session is not on. Once the parliament is in session, the land ordinance would expire in six weeks.
The April 3 ordinance has incorporated all the nine amendments introduced when it was passed in the Lok Sabha. The ordinance only requires the nod from the Upper House to become law.
Dismissing Ms. Jaising's protests for an urgent hearing, Justice Khehar gave the government four weeks to reply.
"We may not agree with you on the ordinance once we read the government's reply," Justice Khehar told Ms. Jaising.
"This is for the first time this court is hearing such a matter. Most cases have been challenges on ordinances promulgated by State Governors... Four weeks? It seems Your Lordships want my petition to be infructuous," Ms. Jaising responded.
The petition alleges that promulgation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement (Amendment) Ordinance, 2015 on April 3 by first proroguing the Rajya Sabha on March 28 was a “clever device and ruse” adopted by the government which subverts the legislative process of the Rajya Sabha.
“Lack of political will or consensus or the fear of the Executive of getting defeated on the floor of the House, is not a ground for exercise of power under Article 123 (power of the President to promulgate Ordinances during recess of Parliament),” said the petition, seeking the Ordinance be declared unconstitutional.
The petition is settled by senior advocate and former Additional Solicitor General Indira Jaising for four farmers' welfare associations – Delhi Grameen Samaj, Bharatiya Kishan Union, Gram Sewa Samiti and ChogamaVikas Avam – variously based in Delhi and Uttar Pradesh.
The petition alleged that a fraud has been played on the Constitution.
Ordinances cannot be a substitute for Legislative law-making, more so after the Bill has been passed by the Lok Sabha and not by the Rajya Sabha, it said.
“This Ordinance does not even indicate what is the extraordinary situation necessitating it... the Supreme Court has categorically held that 'Ordinance Raj' is impermissible and in fact a fraud on the Constitution,” the petition contended.
It called the re-promulgation of the Land Ordinance a “colourable exercise of power on the part of the Executive”.
In the instant case, the Land Bill was passed on March 10, 2015. However, ten days later, the Houses were adjourned on March 20.
The Rajya Sabha was thereafter prorogued on March 28, shortly before the Ordinance was promulgated on April 3.
