GYANENDRA KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition has been filed by two Advocates practising in Delhi challenging the actions of the respondents in re-promulgating about 10 ordinances by the President of India on March 26th and March 27th, 1996, which have come into force on 7-4-1996 on the ground that the said actions are unconstitutional and beyond the scope and power under Art. 123 of the Constitution of India. The details of the promulgation and promulgation of the aforesaid 10 Ordinances could be summarised by the following table. The table indicates in the case of each of the 10 Ordinances, the title of the Ordinance, the date of first and second promulgation and also the date of the third promulgation where it applies: <FRM>JUDGEMENT_58_AIR(DEL)_1997Html1.htm</FRM> The petitioner has also set out in the writ petition the dates when the Rajya Sabha and the Lok Sabha were summoned to meet and were prorogued, which are as follows :- <FRM>JUDGEMENT_58_AIR(DEL)_1997Html2.htm</FRM> It is stated that the re-promulgation of 5 of the above 10 Ordinances had taken place for the second time in spite of the fact that the Parliament was in Session during the aforesaid time.

(2.) Learned counsel appearing for the petitioner submitted before us that the aforesaid Ordinances have now been re-promulgated immediately after the conclusion of the Parliament Session and before the lapse of any of the above Ordinances with an attempt to prevent them from lapsing in accordance with the prescriptions of the Constitution of India as provided under Art. 123 thereby subverting the mandatory procedure prescribed therein. According to him, the contents of the aforesaid 10 Ordinances which have been re-promulgated are substantially the same as were ordinarily promulgated. The petitioner further submitted that the re-promulgation of the Ordinance is in gross disregard of the mandate of the Constitution, inasmuch as, under cl. 2 of Art, 123 of the Constitution of India an Ordinance has to be laid before both Houses of Parliament and would cease to operate at the expiration of six weeks of reassembly of Parliament, which proves and establishes that the Ordinances made by the President are strictly of limited duration and are therefore, necessarily to be placed before the Parliament during the session and would cease to operate at the expiration of six weeks from the re-assembly of Parliament and thus the President cannot by the process of re-promulgation avoid placing the Ordinances before the Parliament for consideration. The further submission of the petitioner was that the re-promulgated Ordinances do not satisfy the pro-requisites under the Constitution of India for having the force of law, inasmuch as, the Ordinances were not placed before the Parliament as is required under Art. 123 (2), and accordingly the said Ordinances cannot be given the force of law. The actions of the respondents in repromulgating the aforesaid 10 Ordinances are also challenged by the petitioner on the ground that the legislative power granted to the President under Art. 123 of the Constitution of India to issue Ordinances is in the nature of an emergency power vested in the President for taking immediate action where such action may become necessary at a time when the Parliament is not in session and therefore, the Executive cannot, by taking resort to an emergency power exercisable by it only when the Legislature is not in session, take over the plenary powers of the Legislature as the same would clearly subvert the democratic process which is the core of the constitutional scheme;

(3.) On the other hand Mr. M. Chandrashekharan, learned Additional Solicitor General appearing for the respondents supported the actions of the respondents in repromulgating the 10 Ordinances on the ground that the Government had initially introduced the bills in the Parliament containing the same provisions in respect of the aforesaid 10 Ordinances but in view of the fact that the Parliament had other much important and urgent legislative business in the aforesaid sessions the Government, in spite of introduction of the bills in respect of the aforesaid Ordinances, could not get the said bills taken up for consideration, or debated upon. Government could not get them passed as the time was too short and that they had a number of other emergent and important legislative and Parliamentary business in the said session. According to him, under the aforesaid circumstances the President has the power and jurisdiction legitimately to repromulgate the aforesaid 10 Ordinances and that there is no illegality and / or irregularity in re-promulgating the aforesaid 10 Ordinances nor the same could be said to be unconstitutional.