Land Acquisition ordinance challenged in Supreme Court; Indira Jaising’s petition alleges “brutal murder” of Constitutional intent

Four NGOs have challenged the Land Acquisition ordinance in the Supreme Court. A petition settled by Senior Advocate Indira Jaising was file today alleging violation of Articles 14 and 123 of the Constitution in the promulgation of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 (Land Acquisition ordinance).

The petition alleges that the government abused the power under Article 123 in promulgating the Land Acquisition ordinance and the same is arbitrary and violative of Article 14 of the Constitution. The petitioners have submitted that the ordinance was promulgated by the executive without there being any emergency. It was then passed in the Lok Sabha and subsequently, the Rajya Sabha was prorogued with the intention of re-promulgating the ordinance since the government did not enjoy a majority in the Upper House.

As per the petition,

“That the Ordinance making power under Article 123 is an emergent power to legislate when the Parliament is not in session. It is not a power conferred on the President to legislate by deliberately proroguing one house of Parliament to exercise the power under Article 123. In the instant case whilst Lok Sabha was adjourned simplicitar on 20.03.2014 the Rajya Sabha was prorogued on 28.03.2015 only with malafides so as to enable passing of the impugned Ordinance on 03.04.2015 which is nothing but subversion of the very purpose and intent of Article 123.”

The petitioners have alleged that in the instant case, the intent of the framers of the Constitution has been,

“brutally murdered by deliberately proroguing the Rajya Sabha so as to enable the promulgation of the impugned ordinance. It is submitted that the power to legislate when the Parliament is not in session cannot be subverted and exercised by the Executive by ending a session so as to legislate by way of Ordinance.”

They have further contended that the executive’s action of issuing successive ordinances because the Bill could not pass muster in the Rajya Sabha is nothing but an abuse of the power under Article 123. The petitioners have submitted that the impugned ordinance imposes “Ordinance Raj” in the country which has been categorically held as impermissible by the Supreme Court.

“It is submitted that if the Executive was permitted to continue the provisions of an ordinance by issuing successive ordinances without submitting to the voice of the Parliament, it is nothing but an usurpation by the Executive of the law making powers of the Legislature…the life and liberty of citizens cannot be regulated by Ordinances and the Executive cannot indirectly arrogate to itself the law making function of the Legislature.”

On the above grounds, the petitioners have sought quashing of the Land Acquisition ordinance as ultra vires Articles 14 and 123 of the Constitution. They have also prayed that the government be restrained from acting in furtherance of the ordinance.

Further, the petitioners have also contended that the ordinance does not indicate any extraordinary situation which necessitated its promulgation and the same has not been disclosed by the executive. Therefore, they have prayed that the relevant materials, files, papers which necessitated an ‘ordinance route’ be placed before the Court in the interim.

Update [April 10, 2015]: Senior Advocate Indira Jaising mentioned the matter before the Chief Justice’ court today and prayed for early hearing. The Court acceded to the request and agreed to take up the matter on coming Monday ie. April 13.