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SCOI Report: How the SC missed an opportunity to rule on repeated promulgation of ordinances

Missed opportunity for anti-lawmaking?
Missed opportunity for anti-lawmaking?

When the petition filed by Delhi Grameen Samaj and others against the Central Government’s Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance came up in court No.4 on Thursday, 24 September, it was a foregone conclusion that Justice JS Khehar, and Justice R Banumathi who heard it, would consider it infructuous, as the ordinance had already lapsed.

Yet, if the petitioners’ counsel, Indira Jaising, who argued the matter, contended that it would be appropriate for the bench to adjudicate on the merits of the controversy, it was not without reason. The ordinance was re-promulgated three times, and it had raised serious issues of constitutional validity.

It was like disposing of a petition against the declaration of Emergency as infructuous, if heard soon after the Emergency was allowed to lapse, on the ground that the matter did not survive.

The hearing of the matter would, no doubt, be academic, but it could have helped to lay down certain principles which should govern the issue of repeated ordinances by the Government, and also examine whether during the three repeated promulgation of the ordinance by the Government, any rights of the citizens were violated, and if so, what were the remedies available.

The Supreme Court, in the past, had heard the petition against the dissolution of Bihar legislative assembly, in Rameshwar Prasad vs Union of India even while allowing the Election Commission, to hold fresh assembly elections in the state, in order to lay down principles which should govern such decisions in future.

When the case was first heard on 13 April, the bench of justices Khehar and SA Bobde, adjourned it with the hope that the petition might become infructuous with the two Houses of Parliament passing the necessary legislation to replace the ordinance in the meantime.

However, this did not happen, and the next hearing of the case was listed for 6 July. In their petitions, the four farmers’ organisations questioned the reason for promulgating the ordinance, namely, the lack of legislative majority in the Rajya Sabha.

The re-promulgation of the ordinance for the third time only vindicated the petitioners, and suggested that the optimism of the SC bench was misplaced. Had the Supreme Court decided to hear the matter despite the lapsing of ordinance, it could have examined the relevance of the court’s previous judgment in DC Wadhwa vs State of Bihar (1987).

Between 1967 and 1981, the State of Bihar promulgated 256 ordinances that ‘were kept alive for periods ranging between one and 14 years by re-promulgation from time to time’. In this case, the Supreme Court held that the practice of re-promulgation of ordinances was unconstitutional.

However, Article 123 of the Constitution, which deals with the power of the President to promulgate ordinances during a recess of Parliament, does not explicitly say anything on whether an ordinance can be re-promulgated, and if so, how many times. The Supreme Court, while condemning the practice of re-promulgation of ordinances as a ‘fraud on the Constitution’ in DC Wadhwa, did not suggest effective remedies in its order. Instead, it hoped and trusted that such a practice would not recur.

Again, while holding that re-promulgation of ordinances is unconstitutional, the Supreme Court in DC Wadhwa envisaged two circumstances in which such re-promulgation may be in order. First, the legislature may have too much legislative business; second, the time at the disposal of the legislature to secure the passage of the bill to replace the ordinance may be short. But these circumstances have been questioned as irrelevant by serious observers. Wadhwa, the petitioner in that case, had suggested extension of the duration of the session of the legislature, if the time at the disposal of the legislature in a particular session is short. Doubts persist whether lack of legislative majority can be cited by a Government as an “adequate reason” to repromulgate an ordinance.

There has been a rise in the number of ordinances repromulgated by the Central Government in the 1990s, giving rise to concerns that this has become an alternative mode of legislation.

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