Challenge to the Re- Promulgation of Land Acquisition Bill
There has been quite an interesting political episode being played for the past few months, with massive legal and Constitutional implications. The recent notification of the Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance 2015 (for brevity sake “Ordinance 2015”) on April 3, is now challenged in the Supreme Court for being violative of the Constitutional framework of law making. Already, the political parties are at loggerheads over the form and content of the Bill and seen constantly challenging the other in the Parliament. But now the battle has shifted from the corridors of the Sansad to the annals of the Supreme Court of India. So, lets us understand what the whole legal fuss is all about.
Power to Issue Ordinance
The Constitution of India under Chapter III, under Article 123 provides for the legislative power of the President, which is known as the ‘Ordinance making’ power. It is not a parallel power of legislation, and can be exercised only when both the Houses of the Parliament are not in session, to enable the executive to meet emergent situations. The Constituent Assembly Debates (Vol. 8, Part V, chapter 3, pp. 201-07) also show that the power to issue ordinance was considered as a necessary evil, which should not be used for political ends. An ordinance has a lifespan of six months, but it is valid for six weeks from the date from which the next session of Parliament begins. In other words, a bill corresponding to the ordinance has to be passed by Parliament within the six-week time- frame to sustain it. This power is only to fill the void for the time being, since the democratic principles as enshrined under our solemn document, regard the true and authorized law makers to be the people of India, acting through their elected representatives (legislatures/parliamentarians).
Wadhwa Judgment (Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579)
Perhaps, the most important judgment in context of Ordinance making power of the Executive, where the petitioner was a professor of economics is the Gokhale Institute of Politics and Economics, whose efforts were commended by minds not lesser than that of the great H.M. Seervai in his famous critical commentary of the Constitution of India. The petitioner had challenged the practice which is being followed by the State of Bihar of repromulgating the ordinances from time to time without their provisions being enacted into Acts of the Legislature. For the same, the petitioner conducted a detailed and thorough research on such practice of the State of Bihar, then published in a book entitled “Repromulgation of Ordinances: Fraud on the Constitution of India”, and submitted before the Court to show that the Governor of Bihar promulgated 256 ordinances in the years between 1967 and 1981, out of which many were repromulgated (38 being repromulagted for more than 6 years). The Court, while noting, that the same ordinances which had ceased to operate were repromulgated containing substantially the same provisions almost in a routine manner, held that the “power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends.” Terming such exercise of power of repromulgation of an ordinance with substantially the same provisions beyond the period limited by the Constitution (at maximum an ordinance can last for 7 and a half months, unless repromulgated) as a colourable exercise of power on the part of the Executive to continue an Ordinance, the Court sought to make it clear that it is the legislature (representing the people of this nation) that have the authority to make a law and executive should not seek to bypass them through ordinance route.
However, the Court also noted that not every case of repromulgation would amount to commit violence upon the Constitution and envisaged certain circumstances in that regard (i) where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or (ii) the time at the disposal of the Legislature in a particular Session may be short. The Wadhwa case was one under Article 213, i.e., the power of the Governor in a State to issue ordinance, which has a Central counterpart u/Article 123.
Before looking into the factors favoring or aggravating Union’s stance, it is necessary to point out that the Supreme Court also would have to see the extent of its jurisdiction, as to whether it can take into account the legislative proceedings as well, for ascertaining the conduct and intention of the ruling Government in issuing the Ordinance 2015.
Factors Favouring the Union
So, what can be the defences taken by the Union to show that the issuance of the Ordinance 2015, was not intended to subvert the legislative process. One, the Union can distinguish the present situation with the situation prevailing in the Wadhwa case on the basis of purely statistical terms of repromulgation. While in the Wadhwa case there were 197 ordinances kept alive for more than a year, in the present case, this ordinance is the second in succession. Admittedly, just because the Ordinance is only a second one is succession, does not mean that such repromulgation cannot be subverting the Constitutional mandate, but this fact coupled with the subsequent favourable factors, can make a strong case for the Union to advocate for the upholding of the Constitutional validity of the Ordinance. Secondly, the idea of using repromulgation as a complacently carried on as a routine affair, as clearly seen in Wadhwa case seems to be absent in the present case. No one can deny the efforts being made by the ruling Government is securing the passage of the bill during the previous session and it could have even succeeded had it had the requisite majority in the Upper House, whereas in Wadhwa case, the Court noted that at one point there was not even any discussion on the introduction of a bill in the legislature. Third, there have been other bills pending as well, which the government struggled to get passed, for instance, the Insurance Laws (Amendment) Bill 2015 (which was incidentally the first economic bill to have received the crucial opposition’s backing in form of Congress’ in the Rajya Sabha where the Government is in minority), and the Coal Mines (Special Provision) Bill 2015 (where the Government got support from parties like TMC, NCP and the DMK, while Congress and Left protested against it) which got passed on the last days of the first half phase of the Budget session. So, considering this it can certainly be contended by the Union that it could not push through in the Parliament the Bill containing the same provisions as in the Ordinance of 2014 because there was too much legislative business in that particular Session. Lastly, the Union can also contend that even if it is assumed that the government would not be able to muster requisite number to get the bill get cleared in the Rajya Sabha, still, the new session would allow it time to convene a joint sitting of the Houses and consequently, take advantage of the superior numerical strength of the Lok Sabha (as compared to the Rajya Sabha, which is more than double the strength of the latter) where the government is in majority. Therefore, the Union might contend that such impugned Ordinance is notified only to keep up the continuation of legal position, till the next session comes up.
Aggravating Factors Against the Union
On the other hand, the petitioners can make a plausible challenge to the validity of the second successive ordinance on the basis of the Wadhwa judgment. One, the April 2015 ordinance is substantially the same ordinance, that previously was promulgated and which was also in form of the Bill that was introduced in this session (the only major difference is the qualification attached to the industrial corridors, exempted from social impact assessment reports and consent clauses). Secondly, the very struggle of the ruling party to get the bills passed in Rajya Sabha, can also become the reason to believe that the present government would ride on this colourable exercise of power to implement its policy and not comply with the proper route of law making. Thirdly, when the Rajya Sabha previously had not been in favor of passing the bill, then, it is a clear indication that the legislature of this nation does not want this law.
Conclusion
No matter what the decision of the Court maybe, what is certain that the mischievous practice of issuing ordinances and repromulgating would be nipped in the bud before it blows itself out of the proportion, especially, in the present circumstances when the President of this nation had to warn the ruling government against resorting to the method of ordinance issue, when the proper way should be to go to the Parliament. Now, the Supreme Court is faced with the task of again preserving the Authority of the Constitution and the democratic principles enshrined in it.
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