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Editorial Notes

Re-promulgation of Ordinances: Parliamentary Supremacy Vs. Judicial Review

Parliamentary supremacy and the power of judicial review is the cornerstone of our democratic republic. Re-promulgate ordinances in the absence of parliamentary approval, is contrary to the intent of our founding fathers and the mandate of the Constitution.
By IT's Editorial Board
January 12, 2017

 

GS (M) Paper-2: “Separation of powers between various organs”

 

Re-promulgation of Ordinances: Parliamentary supremacy Vs.Judicial Review

Introduction:

The Constitution Bench of the Supreme Court, in Krishna Kumar Singh’s case, has reiterated the principle that re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes.

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Reason for this dictum:

  • According to Supreme Court, re-promulgation represents an effort to overreach the legislative process which is the primary source of law-making in a parliamentary democracy.

What is the latest controversy over the Enemy Property (Amendment and Validation) Ordinance?

  • It was first promulgated on January 7, 2016, with the objective of plugging loopholes in the principal act and to ensure that the enemy properties worth thousands of crore do not revert to the legal heirs.
  • The fifth Enemy Property ordinance has been promulgated on the December 22, 2016, to give continued effect to the provisions of the fourth ordinance.
  • The said ordinance has inserted a saving provision vide Section 22(2) of the fifth ordinance to ensure continuity.
  • The aspect that requires thoughtful consideration is an attempt by the government to nullify the judgment, decree or order of any Court by inserting Section 8A (1) in the ordinance. Section 8A (1) empowers the custodian to dispose of “enemy properties” whether by sale or otherwise notwithstanding any judgment, decree or order of any court, tribunal or authority.
  • The failure of the government to ensure the passing of the Enemy Property Bill, 2016 and using the back door of re-promulgation is a practice condemned by the Supreme Court.
  • In case of Enemy Property ordinance, the government, by re-promulgating ordinance for a record fifth time, has converted the emergent power under Article 123 into a source of parallel law-making that is antithetical to the scheme of the Constitution.

Article 123 of the Constitution:

  • Re-promulgation is fundamentally at odds with the principal of parliamentary supremacy.
  • Article 123 of the Constitution spells out requirements before resorting to the extraordinary measure of promulgating an ordinance.

Is re-promulgation against the mandate of the Constitution?

  • This clear attempt by the government to first nullify a judgment and, thereafter, re-promulgate ordinances in the absence of parliamentary approval, is contrary to the intent of our founding fathers and the mandate of the Constitution.
  • The founding fathers were cognisant that the ordinance making power is a “negation of the rule of law”.
  • They envisaged that the aid of Article 123 and 213 of the Constitution will be taken in emergent circumstances when the legislature is not in session and extraordinary circumstances warrant the exercise of authority in order to avoid a situation of constitutional vacuum.
  • The Constituent Assembly debates leave no manner of doubt that the said power ought not to be exercised merely to circumvent a failure to muster support in the legislature.

What should the government do?

  • The satisfaction of the president at the time of the promulgation of an ordinance is within the purview of judicial review.
  • The government will have to satisfy the Court about whether the satisfaction for re-promulgation was based on some relevant material.
  • In the meantime, it would augur well for the government to strictly abide by the Supreme Court’s ruling in Krishna Kumar’s case or else will run the vice of unconstitutionality.
  • Though it is not illegal per se to remove the basis or the foundation of a judgment by a subsequent enactment that uniformly applies to a class of persons, however, the same will be tested on the basis of Article 14 of the Constitution.

Conclusion:

  • The Constitution Bench judgment of the Supreme Court is a vindication of the supremacy of Parliament and a reminder to the executive about the threat posed to the sovereignty of the Parliament by re-promulgation of ordinances.
  • Parliamentary supremacy and the power of judicial review is the cornerstone of our democratic republic.
[Ref: Indian Express]

 

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